[*] Assistant Professor of Law, Florida State University College of Law. J.D., 1986, University of Michigan; M.A. in Economics, 1979, St. Mary's University; B.A., 1977, St. Mary's University. The financial assistance of Florida State University College of Law helped to make this work possible. I would like to thank Frank Cuneo, Lissette Gierbolini, Jeremy Cohen, Reiko Feaver, and Kerri T. Powell for their diligent research assistance. I would also like to thank Jean R. Sternlight for her insightful comments on early drafts of this Article, as well as Donna R. Christie and James Rossi for comments on later drafts. Return to text.

[1] JOHN STUART MILL, ON LIBERTY 6 (Norton ed. 1975) (1859). Return to text.

[2] Fla. CS for HB 863 (1995). The bill was enacted as 1995, Fla. Laws ch. 95-181 [hereinafter the Act or the Property Rights Act] and is now codified at FLA. STAT. ch. 70 (1995). The final text of the Property Rights Act was presented on the floor of the House as an amendment to a real estate disclosure bill sponsored by Representative Dean Saunders, Dem., Lakeland. The text of the real estate disclosure bill was deleted in toto and replaced by the Property Rights Act, which became the final text of the Committee Substitute for House Bill 863. FLA. H.R. JOUR. 1015-20 (Reg. Sess. May 1, 1995). Return to text.

[3] For the sake of simplicity, I am counting only the three most recent property rights initiatives, beginning with a property rights referendum in 1992. However, property rights initiatives are not new to Florida. In the 1970s, several property rights bills introduced in the Florida Legislature were similar in purpose to the 1995 Property Rights Act. See Fla. HB 571 (1977); Fla. CS for SB 1055 (1977); Fla. H.B. 1165 (1977); Fla. SB 261 (1978) ; Fla. HB 438 (1978); Fla. HB 889 (1978). These bills died in committee. See generally Kent Wetherell, Private Property Rights Legislation in Florida: The "Midnight Version" and Beyond, 22 FLA. ST. U. L. REV. 525, 537-547 (1994): Robert M. Rhodes, Compensating Police Power Takings: Chapter 78-85, Laws of Florida, 52 FLA. B.J. 741 (Nov. 1978).

Additionally, two task force studies were completed in the 1970s. In 1975, Governor Askew appointed a 26-member task force to study property rights, regulatory takings, and compensation to landowners [hereinafter 1975 Property Rights Task Force]. See GOVERNOR'S PROP. RTS. STUDY COMM'N, FINAL REPORT OF THE GOVERNOR'S PROPERTY RIGHTS STUDY COMMISSION 2 (1975) [hereinafter 1975 PROPERTY RIGHTS REPORT]. The following year, Senate President Dempsey Barron appointed a task force comprised of seven members of the Florida Senate. See FLA. S. SELECT COMM. ON PROP. RTS. AND LAND ACQUISITION, FINAL COMMITTEE REPORT ON THE "TAKING ISSUE" (1976) [hereinafter 1976 PROPERTY RIGHTS REPORT]. The Governor's commission issued a report on March 17, 1975, recommending a compensation provision similar to that passed in section 1 of the 1995 Property Rights Act. See 1975 PROPERTY RIGHTS REPORT, supra, at 12. This report recommended that "compensation [should be] paid for any regulation that unduly diminishes the value of property, even though it does not constitute an unconstitutional taking without compensation." Id. at 6. Return to text.

[4] In 1993, property rights advocates succeeded in garnering the signatures necessary for a referendum on a proposed property rights amendment to the Florida Constitution. The proposed text of the constitutional amendment added the italicized text below:

Basic Rights - All natural persons are equal before the law and have inalienable rights, among which are the right to enjoy and defend life[,] liberty, to pursue happiness, to be rewarded for industry, and to acquire, possess and protect property; except that the ownership, inheritance, disposition and possession of real property by aliens ineligible for citizenship may be regulated or prohibited by law. No person shall be deprived of any right because of race, religion or physical handicap. Any exercise of the police power, excepting the administration and enforcement of criminal laws, which damages the value of a vested private property right, or any interest therein, shall entitle the owner to full compensation determined by jury trial with a jury of not fewer than six persons and without prior resort to administrative remedies. This amendment shall take effect the day after approval by the voters.
Letter from Robert A. Butterworth, Florida Attorney General, to Stephen Grimes, Chief Justice, and the Justices of the Florida Supreme Court 1-2 (July 8, 1994) (available at Fla. Dept. of State, Div. of Archives, ser. 49, carton 4, Tallahassee, Fla.).

The title for the proposed amendment was "Property Rights: Should Government Compensate Owners When Damaging the Value of Homes or Other Property?" Id. The proposed Constitutional amendment's ballot summary provided:

This amendment entitles an owner to full compensation when government action damages the value of the owner's home, farm, or other vested private property right or interest therein. Excepts administration and enforcement of criminal laws. Owners—including natural persons and businesses—are entitled to have full compensation determined by six-member jury trial without first having to go through administrative proceedings. This amendment becomes effective the day after voter approval.
Id. The Florida Supreme Court found the proposed amendment violative of the Florida Constitution's single-subject requirement, and also found that the ballot summary and title did not adequately apprise voters of the purpose and ramifications of the amendment. League of Women Voters of Florida, Inc. v. Smith, 644 So. 2d 486, 494-495 (Fla. 1994) (advising the Attorney General regarding property rights referendum). During the 1994 Legislative Session, the Legislature tried to pass a property rights bill—the thematic predecessor of the 1995 bill—but the 1994 bill died on the calendar during the waning hours of the session. Fla. CS for HB 485 & HB 1967 (1994); see generally Wetherell, supra note 3. Return to text.

[5] The ad hoc group worked outside the legislative process. Then Secretary of the Department of Community Affairs (DCA), Linda Loomis Shelly, led the group which was comprised of a broad contingent of interest groups. See David Powell et al., A Measured Step To Protect Property Rights, 23 FLA. ST. U. L. REV. 255, 263 n.38 (1995).

The final version of the Property Rights Act was never considered by any committee of the House. The ad hoc group presented its "compromise" bill, SB 2912, to the Senate Judiciary Committee on April 19, 1995, less than two weeks before the end of the legislative session. Fla. SB 2912 (1995); Fla. S. Judiciary Comm., tape recording of proceedings (April 19, 1995) (on file with committee) [hereinafter S. Judiciary Comm. tape]. At this committee meeting the bill was vigorously opposed by the Florida Association of Counties and the Florida League of Cities. S. Judiciary Comm. tape, supra. On April 24, 1995, one week prior to the conclusion of the legislative session, SB 2912 was heard by the Senate Committee on Community Affairs. Again the bill was opposed by the Florida Association of Counties and the Florida League of Cities. Supporters included Robert M. Rhodes and Jim Murley, then Executive Director of 1000 Friends of Florida and now Secretary of the DCA.

Representative Bert J. Harris, Jr., Rep., Lake Placid, the sponsor of the bill in the House and a property rights proponent since the 1970s, speculated that if the bill had been heard in a House committee it would have died there. Telephone interview with Rep. Bert J. Harris, Jr. (May 24, 1995) (notes on file with author) [hereinafter Harris, Interview One].

Governor Chiles described the Property Rights Act as a "reasonable" solution to a hard problem. Adam Yeomans, Property-Rights Bill Goes to Chiles, TALL. DEM., May 4, 1995, at C1. State Senator Rick Dantzler, Dem., Winter Haven, the sponsor of the Senate version of the property rights bill, is cited by Yeomans as stating that the bill "answered the cry from private-property rights without going too far." Id. Return to text.

[6] FLA. H.R. JOUR. 1050 (Reg. Sess. May 2, 1995) (111 yeas, 0 nays); FLA. S. JOUR. 698, 708 (Reg. Sess. May 3, 1995) (38 yeas, 1 nay). Return to text.

[7] There was virtually no debate in the House and only a 30-minute debate in the Senate. Fla. H.R., tape recording of proceedings (May 1-2, 1995) (on file with Clerk of the House) (floor debate on the "strike-everything" amendment to CS for HB 863); Fla. S., tape recording of proceedings (May 3, 1995) (on file with the Secretary of the Senate) (floor debate on SB 1326). Return to text.

[8] 1995, Fla. Laws ch. 95-181 (codified at FLA. STAT. ch. 70 (1995)). Return to text.

[9] FLA. STAT. § 70.001(1) (1995). Return to text.

[10] Id. § 70.51(1). Section 3 of the Act expressly states that sections 1 and 2 are separate and distinct pieces of legislation, and are not to be construed in pari materia. 1995, Fla. Laws ch. 95-181, § 3. Return to text.

[11] FLA. STAT. §§ 70.001(30), 70.51(30) (1995). Return to text.

[12] Id. Return to text.

[13] See infra notes 58-84 and accompanying text. Return to text.

[14] See infra notes 94-209 and accompanying text. Return to text.

[15] FLA. STAT. §§ 70.001(2), (3) (1995). Return to text.

[16] Takings law is concerned with governmental actions, either by regulation or by physical action, that are deemed to "take" private property. The Fifth Amendment of the United States Constitution provides that "private property [shall not] be taken for public use, without just compensation." U.S. CONST. amend. V. The Fourteenth Amendment of the United States Constitution guarantees that no individual shall be deprived of property without due process of law. Id. amend. XIV. The Florida Constitution also guarantees that the government may not take property without just compensation. FLA. CONST. art. X, § 6(a) ("No private property shall be taken except for a public purpose and with full compensation therefor paid."). In addition to the Takings Clause, the Florida Constitution declares that Floridians have "inalienable rights . . . to acquire, possess, and protect property." Id. art. I, § (2). See infra notes 131-201 and accompanying text. Return to text.

[17] FLA. STAT. § 70.51 (1995); see infra notes 35-40, 271-76, 327-414 and accompanying text. Return to text.

[18] The Wall Street Journal recently published a series of articles criticizing Florida's growth management laws. See Christina Binkley, Florida Land-Use Laws: A Solution to the Land-Use Law? It Depends on What the Problem Is, WALL ST. J., March 29, 1995, at F1; Christina Binkley, Florida Land-Use Laws: How Florida's Land-Use Law Has Failed, WALL ST. J., March 22, 1995, at F1. Representative Ken Pruitt, Rep., Port St. Lucie, a longtime proponent of property rights, called the growth management laws "a time bomb waiting to explode." Binkley, Solution to Land Use Law, supra, at F1.

Florida is among the growing number of states that have enacted comprehensive growth management laws. At last count 24 states have authorized some type of regional planning, including all of the states along the east and west coasts. See Patricia E. Salkin, Regional Planning: New Political Magnetism, 44 LAND USE L. & ZONING DIG., June 1992, at 3. Florida's Environmental Land and Water Management Act of 1972 enacts a regional system of planning designed to manage growth pressures in a coordinated and controlled manner. FLA. STAT. §§ 380.012-.10 (1995). The statute creates regional planning councils, which, among other things, prepare comprehensive regional policy plans, and serve as review agencies for developments of regional impact (DRIs), i.e., developments that may have a substantial regional effect. Id. §§ 380.021-.06. The regional plans, in turn, must be consistent with the State Comprehensive Plan and consider existing state, regional, and local plans. Id. §§ 186.021, .507, .508. See generally JOHN M. DEGROVE, LAND, GROWTH AND POLITICS (1984); Daniel W. O'Connell, Growth Management in Florida: Will State and Local Governments Get their Acts Together?, FLA. ENVTL. & URB. ISSUES, Apr. 1984, at 1; THOMAS G. PELHAM, STATE LAND USE PLANNING AND REGULATION (1979).

The growth management planning process itself remains largely a local process. The Local Growth Management Act of 1985, CODIFIED AT FLA. STAT. ch. 163, requires that local communities prepare a "scientifically based" comprehensive plan, Id. § 163.3177, which can be updated twice per year. Id. § 163.3187(1). The Department of Community Affairs, in turn, is charged with reviewing and ensuring that local comprehensive plans accord with regional plans, the state plan, and other applicable laws. Id. § 163.3187(1). All land development orders issued by local governments, such as zoning, rezoning, and issuance of permits, must be consistent with the comprehensive plan. See Id. § 163.3194; see also Board of County Comm'rs v. Snyder, 627 So. 2d 469, 475 (Fla. 1993). Return to text.

[19] Jim Murley of 1000 Friends of Florida is quoted as calling the Act "one big law firm relief act." See Binkley, Solution to Land Use Law, supra note 18, at F1.

Lawyers, though, would be advised to become well-versed in mediation and other alternative dispute resolution (ADR) techniques since there is clearly a trend to shift land use disputes away from the administrative and judicial processes toward ADR. Return to text.

[20] FLA. STAT. § 70.001(2) (1995). Return to text.

[21] See infra notes 289-93, 300-30 and accompanying text. Return to text.

[22] See infra notes 219-34 and accompanying text. Return to text.

[23] This "legitimacy" effect has been identified and discussed by leading takings and constitutional process scholars including professors Ackerman, Michelman, Ely, Sax, and Tribe. When the state appears to act in an arbitrary fashion, the legitimacy of the state is questioned. For example, when the exercise of state police power impacts one group disproportionately and the state fails to make necessary compensation, this will diminish citizens' trust in government. See generally LAURENCE H. TRIBE, AMERICAN CONSTITUTIONAL LAW 605-07 (2d ed. 1988); BRUCE A. ACKERMAN, PRIVATE PROPERTY AND THE CONSTITUTION (1977); Frank I. Michelman, Property, Utility, and Fairness: Comments on the Ethical Foundations of "Just Compensation" Law, 80 HARV. L. REV. 1165 (1967); JOHN H. ELY, DEMOCRACY AND DISTRUST: A THEORY OF JUDICIAL REVIEW (1980); Joseph L. Sax, Takings and the Police Power, 74 YALE L.J. 36 (1964). Return to text.

[24] James Madison viewed the Takings Clause as an anti-majoritarian device that protects the rights of property owners. See THE FEDERALIST NO. 10, at 79 (James Madison) (Lester DeKoster ed., 1976) ("The most common and durable source of factions has ever been the unequal distribution of property. Those who hold as opposed to those who are without property have ever formed distinct interests in society.").

Scholars, as well, have directly and indirectly viewed takings law as a political struggle between groups. Frank Michelman views the Takings Clause as a negative restriction protecting the status quo. Frank I. Michelman, Takings, 1987, 88 COLUM. L. REV. 1600, 1625 (1988). Susan Rose-Ackerman observes that the Takings Clause is an ineffective way of equalizing political power among groups. See Susan Rose-Ackerman, Regulatory Takings: Policy Analysis and Democratic Principles, in TAKING PROPERTY AND JUST COMPENSATION: LAW AND ECONOMICS PERSPECTIVES OF THE TAKINGS ISSUE 25, 34 (Nicholas Mercuro ed., 1992). Rather, she posits that it is most effective as a way of protecting diverse individuals from bearing disproportionate costs of public policy. See id; see also infra note 243. Return to text.

[25] Under the Florida Constitution, counties and municipalities do not have to comply with general laws that require expenditure of county or municipal funds, unless the Legislature has determined that such law fulfills an important state interest and the law passes by two-thirds membership of each Chamber of the Legislature. FLA. CONST. art. VII, § 18.

The Act was passed unanimously in the House and with only one dissenting vote in the Senate. See supra note 6. Section 1 of the Act declares the importance of protecting private property owners from laws, regulations, and ordinances of the state and political entities in the state that inordinately burden, restrict, or limit private property rights, without amounting to a taking. FLA. STAT. § 70.001(1) (1995). The House Report concluded that the Act is not an unfunded mandate. See Fla. H.R. Comm. on Judiciary, CS for HB 863 (1995) Staff Analysis (May 23, 1995) (on file with comm.), see generally FLORIDA ADVISORY COUNCIL ON INTERGOVERNMENTAL RELATIONS, 1991 REPORT ON MANDATES AND MEASURES AFFECTING LOCAL GOVERNMENT FISCAL CAPACITY (1991); Nancy P. Spyke, Florida's Constitutional Mandate Restrictions, 18 NOVA L. REV. 1403 (1994); Kristin C. Rubin, Unfunded Mandates: A Continuing Source of Intergovernmental Discord, 17 FL. ST. U. L. REV. 591 (1990); see also infra notes 266, 283. Return to text.

[26] From a classical viewpoint, property is a bundle of rights, consisting mainly of possession, use, and the right to exclude and to alienate, which the owner is free to exercise in the manner that she wishes. Professor Epstein advocates an extreme version of this classical view, under which, with limited exceptions, most governmental restrictions on this principal bundle of rights would constitute a taking for which just compensation must be paid for by the government. RICHARD A. EPSTEIN, TAKINGS: PRIVATE PROPERTY AND THE POWER OF EMINENT DOMAIN 65, 177, 257-59, 297-99 (1985) [hereinafter EPSTEIN, TAKINGS]. Return to text.

[27] The Act can be viewed as a windfall to a certain class of property owners. This windfall does not favor Floridians whose property consists of home ownership but does favor owners of large undeveloped parcels—mostly timber companies, agribusinesses, small-and-medium-sized farmers and developers—who will now be entitled to compensation under the Act for government regulatory actions. See infra note 234; see generally Harold Demsetz, When Does the Rule of Liability Matter?, 1 J. LEGAL STUD. 13 (1972). This large landowner group was influential in bringing about passage of the Act. See infra notes 64-71 and accompanying text. Return to text.

[28] Taking an asset-based accounting approach using property tax valuations, the Florida Department of Revenue estimated that the value of private land ownership in Florida in 1994 was nearly half a trillion dollars and that nearly $50 billion of that was land that was vacant or substantially unimproved. See GOVERNOR'S PROP. RTS. STUDY COMM'N II, REPORT OF THE GOVERNOR'S PROPERTY RIGHTS STUDY COMMISSION II 74-75 (1994) [hereinafter 1994 PROPERTY RIGHTS REPORT]. Of course, property tax valuations tend to be lower than fair market value. Last year, the Florida Consumer Action Network, the Florida Public Interest Research Group, and the Florida Sierra Club estimated that nine of the state's largest landowners, all of which were corporations, stood to gain $28 billion if the law were passed. See Binkley, Solution to Land Use Law, supra note 18, at F1. Return to text.

[29] See infra notes 97-112 and accompanying text. Return to text.

[30] See infra note 112. Return to text.

[31] See infra note 286 and accompanying text. Return to text.

[32] See FLA. STAT. § 70.001(5)(a) (1995); see also infra notes 285-86 and accompanying text. Return to text.

[33] See FLA. STAT. § 70.001(5)(a) (1995). Return to text.

[34] Id. § 70.001(4)(a). Return to text.

[35] Id. § 70.51(4). Return to text.

[36] Id. § 70.001(4); see infra notes 279-84 and accompanying text. Return to text.

[37] FLA. STAT. § 70.51(17)(a) (1995). Return to text.

[38] Id. §§ 70.51(17)(b), (19), (21)- (22). Return to text.

[39] 1995, Fla. Laws ch. 95-181, § 1, 1651, 1652 (codified at FLA. STAT. § 70.001 (1995)). Return to text.

[40] Id. The Powell et al. article, supra note 5, and another recent article, Martin R. Dix, Richard Lee & Alicia M. Santana, Land Use and Environmental Dispute Resolution: The Special Master, 69 FLA. B.J. 63 (Nov. 1995), discuss the Florida Land Use and Environmental Dispute Resolution section of the Act in more detail. The main weakness of the dispute resolution mechanism is that there is no incentive nor is there any obligation for local governments to participate in this new dispute resolution process. Although the Act provides that the parties must agree on a special master, the Act does not state what procedure is to be followed or what penalties, if any, ensue if the parties cannot agree on a special master. See FLA. STAT. § 70.51(4) (1995). Nowhere does the Act place an absolute obligation on land use entities to use this special master procedure. Therefore, a risk-averse, rational local government would be well-advised not to participate in such a process, since the dispute resolution process markedly favors property owners.

Second, the special master procedure is a hybrid mediation-arbitration process. Id. § 70.51(19). The parties first negotiate and, then, if they fail to come to an agreement, the special master is required to make a recommendation that could have legal effect. Id. §§ 70.51(17)(b), (19), (21)-(22). Mediation techniques which are instrumental in arriving at a settlement, such as consulting privately with each party, are not likely to be used if the special master has the potential to become a trier-of-fact and a trier-of-law.

Third, the results of the special master procedure are nonbinding. See id. § 70.51(21)-(22). Even after going through the special master procedure, the land use entity and the property owner are free to reject the findings of the special master. See id. §§ 70.51(21)(c), (22). If the parties do not reach an agreement, the landowner is free to pursue other remedies including the compensation remedy under section 70.001 of the statute. See id. § 70.51(24). Thus, local governments that are happy with the conclusion of the special master procedure cannot count on preserving the result.

The Florida Growth Management Conflict Resolution Consortium has prepared model ordinances for implementing the special master procedure and is providing training for state and local governments. See FLORIDA CONFLICT RESOLUTION CONSORTIUM, MODEL PROCEDURAL GUIDELINES FOR SPECIAL MASTER PROCEEDINGS (1995) [hereinafter MODEL PROCEDURAL GUIDELINES]. Return to text.

[41] See infra notes 356-417 and accompanying text. Return to text.

[42] See infra notes 388-404 and accompanying text. Game theory can be used to predict how the Act will affect decisionmaking. It is based on microeconomic theory that examines the strategic behavior of rational, self-interested actors and how certain factors can influence behavior in negotiations. See generally DOUGLAS G. BAIRD ET AL., GAME THEORY AND THE LAW (1994). Return to text.

[43] See infra notes 356-78 and accompanying text. Return to text.

[44] See infra notes 379-404 and accompanying text. Return to text.

[45] See infra note 404 and accompanying text. Return to text.

[46] See infra notes 233-34, 418-22 and accompanying text. Return to text.

[47] See infra notes 219-66 and accompanying text. Return to text.

[48] See infra notes 239-66 and accompanying text. Return to text.

[49] See infra notes 58-93 and accompanying text. Return to text.

[50] See infra notes 255-66 and accompanying text. Return to text.

[51] See infra notes 323-30 and accompanying text. Return to text.

[52] See infra note 330 and accompanying text. Return to text.

[53] See infra notes 410-17 and accompanying text. Return to text.

[54] See infra notes 412-14 and accompanying text. Return to text.

[55] See infra notes 418-28 and accompanying text. The Department of Community Affairs has already provided guidance in the implementation of the special master procedure. The Department contracted with the Florida Growth Management Conflict Resolution Consortium to provide a set of guidelines and training programs for state and local governments. See MODEL PROCEDURAL GUIDELINES, supra note 40. I suggest that, in like fashion, the Executive Branch or the Legislature act quickly to provide guidance in the implementation of the Act's decentralized decisionmaking procedure. Return to text.

[56] J.M. Balkin, Populism and Progressivism as Constitutional Categories, Democracy and the Problem of Free Speech, 104 YALE L.J. 1935, 1946 (1995) (reviewing CASS R. SUNSTEIN, DEMOCRACY AND THE PROBLEM OF FREE SPEECH (1993)). Return to text.

[57] Telephone interview with Rep. Bert J. Harris, Jr. (May 26, 1995) (notes on file with author) [hereinafter Harris, Interview Two]. Return to text.

[58] In 1995, six other states passed property rights bills; Idaho, see HB 212, 53rd Leg., 1st Sess. (1995); Kansas, see HB 2015, 76th Leg., 1st Sess. (1995); SB 231, 54th Leg. (1995); North Dakota, see SB 2388, 54th Leg. (1995); Texas, see SB 14, 74th Sess. (1995); Wyoming, see HB 171, 53rd Leg. (1995). Between 1991 and 1994, numerous states have also passed other similar bills. Delaware, see SB 130, 136th Gen. Assembly, 1st Sess. (1991); Indiana, see HB 1646, 108th Leg., 1st Sess. (1993); Maine, see HB 847, HB 1238, 116th Leg., 2nd Sess. (1993); Missouri, see SB 558, HB 1099, 87th Leg., 2nd Sess. (1994); Tennessee, see SB 2643, 98th Gen. Assembly, 1st Sess. (1993); Utah, see HB 163, 50th Leg., 1st Sess. (1994); Utah, see HB 171, 50th Leg., 1st Sess. (1993). Return to text.

[59] Populism is a political movement identified particularly with the South and farm states. Populism reached its zenith during the election of 1891, when farmers suffered economic hardship as a result of dropping crop prices and higher costs due to escalating interest rates and high transportation costs passed on by railroads. The reforms advocated by populists were eventually assimilated into, or co-opted by, the major political parties. Thus, populism as a formal political reform movement became unnecessary. See ROBERT C. MCMATH, JR., AMERICAN POPULISM: A SOCIAL HISTORY 1877-1898 19, 44-49 (1993); see generally GENE CLANTON, POPULISM: THE HUMANE PREFERENCE IN AMERICA 1890-1900 (1991). Scholars view populism as a continuing political philosophy that manifests itself in contemporary politics, such as when Jimmy Carter, in the 1976 presidential election, had an almost solid victory in the South with the sole exception of Virginia. See ROBERT E. BOTSCH, WE SHALL NOT OVERCOME: POPULISM AND SOUTHERN BLUE-COLLAR WORKERS 3 (1980).

Populism is deeply rooted in the social and economic networks of the South and rural communities. One basic tenet of populism is a suspicion of centralized authority, whether the authority is governmental or private, such as industrial cartels or elites which co-opt governmental influence. Populists decry dependency and value individualism. Hence, for populists, the proper role of government is to protect the rights that individuals need to make a decent living. On the other hand, populists view corruption as endemic to the exercise of power. Thus, populists view government bureaucracy with a great deal of suspicion and desire reforms that will make government more accessible and responsive to commonplace people. See Balkin, supra note 56, at 1946. To achieve this end, populists seek to facilitate participation by citizens in the process of government. Id. at 1945. Return to text.

[60] Agriculture is the third largest industry in Florida, consisting of large agribusiness, mostly sugar growers, and small- to medium-sized farmers. Many of the farms in the middle of the state are owned and operated by "family" style farmers. See FLORIDA DEPARTMENT OF AGRICULTURE & CONSUMER SERVICES, AGRICULTURE FACTS 1994 3 (1994).

Agriculture has a substantial stake in the property rights movement for two reasons. First, environmental regulations can place significant restrictions on farming operations, thereby increasing operational costs. For example, if a farm is part of an endangered species habitat, regulations will restrict which areas may be farmed and how they can be farmed. Second, for small-and medium-sized farmers, the bulk of their personal wealth is in their land. The land is their savings. If land use regulations significantly influence the fair market value of a parcel, they will also affect the farmers' personal wealth.

There is a perception, not based on evidence, that growth management regulations have affected the value of farmland. One comment submitted to the 1991 Florida Land Value Survey stated that "[t]he comprehensive plan has killed transition land and most farm land sales." DAVID DENSLOW ET AL., BUREAU OF ECONOMIC AND BUSINESS RESEARCH, UNIVERSITY OF FLORIDA, THE ECONOMIC IMPACT OF LOCAL GOVERNMENT COMPREHENSIVE PLANS 51 (1994) (citing an unpublished comment to the 1991 Florida Land Value Survey). Not coincidentally, the Property Rights Act provides that an owner's existing use can be the non-speculative use of neighboring properties. FLA. STAT. § 70.001(3)(b) (1995). This "use" definition will benefit farmlands situated at the fringes of an urban area. See infra notes 240, 291. Return to text.

[61] For example, Rep. Ken Pruitt believes that land use laws are too intrusive, complex, and anti-growth. See Binkley, Solution to Land Use Law, supra note 18, at F1. Return to text.

[62] Rep. Bert J. Harris, Jr., after whom the Act was named and a leading advocate of the Act, represents an area of the state where there are many citrus farms, and is himself a citrus farmer. In 1978 he sponsored a Property Owners Protection Act, and 17 years later he sponsored the Property Rights Act in the Florida House of Representatives. Rep. Harris has been a longtime supporter of property rights and has sponsored property rights bills in the 1993 and 1994 legislative sessions as well. See Fla. HB 1437 (1993); Fla. HB 485 (1994). Rep. Ken Pruitt, a real estate professional from the rapidly growing area of Port St. Lucie, was the co-sponsor of the 1995 Act, the sponsor of the 1993 property rights bill, Fla. HB 1437 (1993), and a member of the ad hoc group which drafted the 1995 Property Rights Act. Rep. Dean Saunders, who brought the Property Rights Act to the floor of the Florida House of Representatives for a vote, was a co-sponsor of the 1994 Property Protection Act. See Fla. HB 1967 (1994). Return to text.

[63] See generally Wetherell, supra note 3. Return to text.

[64] The $3 million drive for the 1994 property rights constitutional amendment was financed largely by U.S. Sugar Corporation and other members of the Florida Legal Foundation. See Binkley, Solution to Land Use Law, supra note 18; David J. Russ, How the "Property Rights" Movement Threatens Property Values in Florida, 9 J. LAND USE & ENVTL. L. 395, 399 (1994). Return to text.

[65] These corporations held among them at least 2.1 million acres of undeveloped private land. See Russ, supra note 64, at 399. St. Joe Paper Company, U.S. Sugar Corporation, Lykes Brothers, Collier Enterprises, and A. Duda & Sons were among the most public of the corporate supporters of the property rights movement in 1994. See Mary Ellen Klas, Powerful Landowners Fuel Property Revolt, PALM BCH. POST, Mar. 11, 1994, at A1. Return to text.

[66] In 1993 the Florida Legislature attempted to pass a property rights bill but succeeded only in enacting legislation which would have created a commission to study property rights and regulatory takings. See Fla. SB 1000 (1993). This bill was vetoed by Governor Lawton Chiles on the ground that it would be the first step toward dismantling the growth management laws. See Margaret Leonard, Effort To Pass Property Law in Florida Is Still Brewing, TALL. DEM., Jan. 3, 1993, at A7. Return to text.

[67] For example, large portions of farming areas in central Florida are also designated wetlands. Farmers have complained about being forced to reduce the acreage that they cultivate because of wetland regulations or because their land is a habitat to an endangered species. Mickie Valente, Big Business Big Winner in "Contract," TAMPA TRIB., Mar. 25, 1995, at Business and Finance 1; Jeff Klinkenberg, Showdown in the Everglades, ST. PETE. TIMES, Sept. 27, 1992, at F1. Return to text.

[68] Representative Harris provided one example of the type of wrong that the Property Rights Act was intended to correct. He cited the situation of one of his constituents, an elderly lady who had purchased a lot 20 years ago with the intent of living there in a mobile home. When she was ready to do this, land use regulations prohibited her from doing so. See Harris, Interview One, supra note 5. Return to text.

[69] Consider these tales of travail recounted in Forbes:

[The] Horvitz family has fought Florida's land planning bureaucracy for ten years. Their goal: to build a luxury residential community and marina on their 1,600 acres of water-front property, considered by many to be the best big coastal site left in southern Florida. Their development outfit, Hollywood Inc., spent at least $2 million on plans, paperwork and lawyers, and appeared before an assortment of state, city and county agencies and boards. Still the red tape multiplied. The Horvitzes filed thick piles of forms, applications and memoranda. The upshot: The Horvitzes won permission to build apartments home [sic] and warehouses on 300 acres, but no marina. In exchange, they had to agree to sell the remaining 1,300 acres to the state and Broward Country [sic] as part of an effort to preserve a mangrove swamp.
David T. McWilliams . . . spent three years wringing approval from half a dozen local, state and federal agencies to buil[d] a small subdivision on 70 acres near Cape Canaveral. After McWilliams started construction on six houses and 15 condos, the U.S. Army Corps of Engineers abruptly slapped him with a cease-and-desist order and stopped construction cold for six months. Only when McWilliams agreed to plant cordgrass and mangroves along 2 miles of nearby waterfront (at a cost of more than $30,000) did the Corps allow him to resume work.
Thanks to three gopher tortoise sightings on a 4,800-acre planned development north of Tampa, the state's Fresh Water Fish & Game Commission recently ordered Shimberg Cross Co. to cede 600 acres of its project for a preserve. The small land turtle, which is not an endangered species, has prompted similar concessions on more than one large project, including a luxury hotel site in Fort Lauderdale.
James Drummond, Florida's Great Red Tape Swamp, FORBES, Oct. 30, 1989, at 193, 193-95. Return to text.

[70] To some extent, big money interests sought to exploit this populist fervor. The Florida Farm Bureau general counsel commented that the property rights movement had to offset the prejudice against industry and exploit stories about the "little guy." See Klas, supra note 65, at 22. Return to text.

[71] Interview with Carol Gregg, Legis. Analyst, H.R Judiciary Comm. (May 25, 1995) (notes on file with author). Return to text.

[72] See Democrats' Dominance Drops, ORLANDO SENT., June 19, 1995, at B1. Return to text.

[73] Fla. Exec. Order No. 95-74 (Feb. 27, 1995). Return to text.

[74] Governor Lawton Chiles, Inaugural Speech (Jan. 3, 1995). Return to text.

[75] Fla. Exec. Order No. 95-74 (Feb. 27, 1995). Return to text.

[76] Id. at 1. Return to text.

[77] Id. Return to text.

[78] PHILIP K. HOWARD, THE DEATH OF COMMON SENSE (1994). Return to text.

[79] Even Professor Cass Sunstein, a well-known and widely respected constitutional scholar identified with civic republicanism and the legal process movement, acknowledged the validity of the general theme of Howard's book. See Cass R. Sunstein, Land of 4,000 Unreadable Rules, N.Y. TIMES, Feb. 12, 1995, at 12 (reviewing THE DEATH OF COMMON SENSE). This book made the reading list of the President of the United States, the Governor of Florida, and every agency head of Florida, and, in general, swept the country. In remarks to the Florida Legislature, President William J. Clinton noted a common interest in The Death of Common Sense and in regulatory reforms designed to make government regulations simpler and more "common sensible." FLA. S. JOUR. 259-260 (Reg. Sess. March 30, 1995). Governor Chiles gave The Death of Common Sense to every agency head and commended each to read it and to be responsive to the concerns expressed in the book. Scott Eyman, The Death of Common Sense, PALM BCH. POST, Mar. 8, 1995, at D1. Return to text.

[80] HOWARD, supra note 78, at 173 ("It is no coincidence that Americans feel disconnected from government: The rigid rules shut out our point of view. Americans feel powerless because we are not given a choice: Modern law does not allow us . . . ."). Return to text.

[81] Mr. Howard states that new housing subdivisions have an empty, open look because 50 years ago traffic engineers wrote a standard code requiring streets to be 50 feet wide, about 50% wider than streets a few decades earlier, since that was the width necessary to allow two fire engines going in opposite directions to pass each other at 50 miles per hour. HOWARD, supra note 78, at 5. Another example Howard cites is Mother Theresa's abandoned attempt to open a mission for homeless men in of New York City. Mother Theresa's order was frustrated because the city offered to sell the order an abandoned building for one dollar, as the site of the new mission, but then required the installation of a $100,000 elevator, as required by the city's building code, which the order could not afford. Id. at 1-4. Return to text.

[82] Id., at 173. Return to text.

[83] See infra notes 235-38 and accompanying text. As part of this regulatory reform, the 1995 Florida Legislature enacted other far-reaching reforms of the ways that agencies exercise regulatory power. Governor Chiles vetoed a bill which would have amended the Administrative Procedures Act. See Fla. CS for SB 536 (1995). Although Governor Chiles was in agreement with the overall purpose of the reforms to simplify rulemaking, in his view some of the proposed changes would have burdened agency resources and led to additional administrative hurdles and burdens. See Letters from Governor Chiles to Sandra B. Mortham, Sec'y, Dep't of State, and James A. Scott, Senate Pres. (July 12, 1995) (on file with author). Among other things, this legislation would have required agencies to consider the economic cost of regulations, choose the method with the least economic impact, and bear the burden of proof regarding the validity of any new rule the agency promulgated. Return to text.

[84] The executive order creating the task force specified that it was to be made up of four private property owners, one economist, two local government officials, four representatives of environmental organizations, the Secretary of the Department of Community Affairs, the Secretary of the Department of Environmental Protection, a representative from a water management district, as well as members of the House and Senate. The 1994 Property Rights Task Force was chaired by a representative of the Florida Bar. Fla. Exec. Order No. 93-354, § 2 (December 29, 1994). Return to text.

[85] 1994 PROPERTY RIGHTS REPORT, supra note 28. Return to text.

[86] The 1994 Property Rights Report contains proposed legislation. Id. at 3-31. Return to text.

[87] Id. at 5-8. The 1975 Property Rights Task Force also recommended compensation for "any regulation that unduly diminishes the value of property, even though it does not constitute an unconstitutional taking without compensation." 1975 PROPERTY RIGHTS REPORT, supra note 3, at 12. Return to text.

[88] 1994 PROPERTY RIGHTS REPORT, supra note 28, at 1-2. Return to text.

[89] According to the 1994 Property Rights Report, even environmentalists joined the charge. Bob Wilson (an environmentalist on the 1994 Task Force) was characterized as advocating "almost entirely the . . . position of property owners." Id. at 58. Return to text.

[90] Fla. SB 1326 (1995); Fla. SB 2912 (1995); Fla. SB 1868 (1995); Fla. HB 1381 (1995); Fla. HJR 1847 (1995); Fla. SJR 218 (1995); Fla. HB 863 (1995). Return to text.

[91] See supra note 5. Return to text.

[92] Telephone interview with Daniel Stengle, General Counsel, Dept. of Comm'y Aff., (June 15, 1995) (notes on file with author); interview with Carol Gregg, H. Judiciary Comm., Legis. Analyst (May 25, 1995) (notes on file with author). Return to text.

[93] See supra notes 6-7 and accompanying text. Return to text.

[94] 1994 PROPERTY RIGHTS REPORT, supra note 28, at 57. Return to text.

[95] HOWARD, supra note 78, at 108. Return to text.

[96] Philip Emmer, a Gainesville developer for more than three decades, describes his experience with land use and environmental officials. Binkley, Solution to Land Use Law, supra note 18, at F1. Return to text.

[97] The foremost takings cases have all taken many years to wind their way through the court and administrative system. The leading case in Florida, Graham v. Estuary Properties, Inc., 399 So. 2d. 1374 (Fla. 1981), cert. denied, 454 U.S. 1083 (1981), took six years to reach the Florida Supreme Court. Lucas v. South Carolina Coastal Council, 112 S. Ct. 2886 (1992), the much acclaimed, recent "pro-property owners" case, took five years to reach the United States Supreme Court. The legal fees incurred exceeded half a million dollars. LAND USE L. REP. 117 (July 28, 1993). When the case was remanded to the lower court for a determination of state law issues, Mr. Lucas decided to forego further litigation and settled with the state for approximately $1.5 million. Id. Shortly thereafter, Mr. Lucas founded a nonprofit "property rights" group. See Brigit Schutte, Legal Victory Heats Up the Dispute, TALL. DEM., Jan. 3, 1994, at 7A. Two other recent noted circuit court cases, Florida Rock Indus., Inc. v. United States, 18 F.3d 1560 (Fed. Cir. 1994), cert. denied, 115 S. Ct. 898 (1995), and Loveladies Harbor, Inc. v. United States, 28 F.3d 1171 (Fed. Cir. 1994), have already made several rounds between the district and circuit courts. Florida Rock Industries has been in litigation for 10 years and has not yet been resolved. Return to text.

[98] Accord S. 239, 104th Cong., 1st Sess., § 2(4) (1994) (stating in preamble to the Private Property Owners Bill of Rights that "Private property owners are being forced by Federal Policy [sic] to resort to extensive, lengthy and expensive litigation to protect certain basic civil rights guaranteed by the constitution"). Return to text.

[99] See Penn Central Transp. Co. v. City of New York, 438 U.S. 104 (1978); Williamson County Regional Planning Comm'n v. Hamilton Bank of Johnson City, 473 U.S. 172, 193 (1985). Return to text.

[100] See Alexander v. Town of Jupiter, 640 So. 2d 79 (Fla. 4th DCA 1994), appeal dismissed, 648 So. 2d 725 (Fla. 1994); J.T. Glisson v. Alachua County, 558 So. 2d 1030 (Fla. 1st DCA 1990), rev. denied, 570 So. 2d 1304 (1990). Return to text.

[101] One commentator has called the ripeness requirement "the most important legal principle in land use litigation." Gregory Overstreet, The Ripeness Doctrine of the Taking Clause: A Survey of Decisions Showing Just How Far Federal Courts Will Go To Avoid Adjudicating Land Use Cases, 10 J. LAND USE & ENVTL. L. 91, 91 (1994); see also Brian W. Blaesser, Closing the Federal Courthouse Door on Property Owners: The Ripeness and Abstention Doctrines in Section 1983 Land Use Cases, 2 HOFSTRA PROP. L.J. 73, 75 (1988) ("In particular, the federal courts have applied the doctrines of ripeness and abstention to either dismiss or stay constitutional challenges to land use decisions, in effect, leaving the federal courthouse door only slightly ajar for land use cases which involve only the most egregious examples of arbitrary action by local governments."). Return to text.

[102] Courts cannot review a local forum's decisions for a takings violation until it is clear that an adequate remedy has been denied. Only when the local decisionmaking entity has made a final decision can it be determined just how far the regulatory action has gone to hinder a property right. A court will not review another authority's decision until the petitioner has had her case exhaustively reviewed at that level and the governmental agency has had an opportunity to redress the petitioner's concerns or adjust or modify its decision. See Williamson County, 473 U.S. at 193 ("[T]he finality requirement is concerned with whether the initial decisionmaker has arrived at a definitive position on the issue that inflicts an actual, concrete injury."); MacDonald, Sommer & Frates v. County of Yolo, 477 U.S. 340, 351 (1986) (finding appellant had not received a "final, definitive position regarding how it will apply the regulations at issue"); San Diego Gas & Elec. Co. v. San Diego, 450 U.S. 621, 622 (1981) (case dismissed because California Court of Appeal did "not decide whether any taking, in fact, occurred;" therefore, the case was not "final"); Agins v. City of Tiburon, 447 U.S. 255 (1980) (holding that appellants failed to apply for alternative development on property; therefore case was not properly before the court); Villas of Lake Jackson, Ltd. v. Leon County, 796 F. Supp. 1477 (N.D. Fla. 1992) (requiring exhaustion of all remedies with respect to takings claims); see also Executive 100, Inc. v. Martin County, 922 F.2d 1536 (11th Cir. 1991), cert. denied, 112 S. Ct. 55 (1991) (requiring exhaustion of all administrative remedies, including inverse condemnation proceedings). Return to text.

[103] The state compensation requirement responds to the question of whether there has been a denial of just compensation. It requires a petitioner to seek compensation available under state, local, and administrative processes and to have been denied relief under such processes. See Williamson County, 473 U.S. at 194-95 ("[B]ecause the Fifth Amendment proscribes takings without just compensation, no constitutional violation occurs until just compensation has been denied . . . . If the government has provided an adequate process for obtaining compensation and if resort to that process 'yield[s] just compensation,' then the property owner 'has no claim against the Government' for a taking.") (citing Ruckelshaus v. Monsanto Co., 467 U.S. 986, 1013, 1018 n.21 (1984)). However, such recourse must be an adequate process for securing compensation. In Williamson County, the Supreme Court held that the availability of an inverse condemnation claim in state court was an "adequate" compensation remedy that the petitioner should have exhausted. Id. at 197. Return to text.

[104] Only a facial challenge, that is, a challenge that the regulation itself is unconstitutional, does not have to comply with both prongs of the ripeness requirement. Village of Euclid v. Ambler Realty, Co., 272 U.S. 365 (1926); but see MacDonald, 477 U.S. at 348 (stating that in a facial challenge, the court may require the petitioner to exhaust local process). As the United States Supreme Court has noted, the plaintiff "face[s] an uphill battle" in a facial challenge. See Keystone Bituminous Coal Ass'n v. DeBenedictis, 480 U.S. 470, 495 (1987). Return to text.

[105] See Williamson County 473 U.S. at 194. The Lucas decision, however, showed some flexibility with respect to the final decision requirement. In Lucas there was a question whether Lucas should have applied for a permit under a special procedure established by the coastal commission after Lucas had commenced his suit. The Court found that doing so would have been "pointless," rejecting the state's ripeness defense. Lucas v. South Carolina Costal Council, 112 S. Ct. 2886, 2891 n.3 (1992). This was the first time that the Court applied the "futility" exception, which provides that a petitioner need not exhaust all local remedies if to do so would be futile. Id. at 2891.

Professor Roberts argues that Lucas signals to federal lower courts that they may treat the ripeness requirement as "prudential," rather than as a matter of subject matter jurisdiction. See Thomas Roberts, Ripeness After Lucas, in AFTER LUCAS: LAND USE REGULATION AND THE TAKING OF PROPERTY WITHOUT COMPENSATION 23 (David Callies ed., 1993). In Reahard v. Lee County, 968 F.2d 1131, 1133 (11th Cir. 1992), cert. denied, 115 S. Ct. 1693 (1995), a case decided after Lucas, the Eleventh Circuit continued to regard ripeness as a question of subject matter jurisdiction. Return to text.

[106] Penn Central. Transp. Co. v. City of New York, 438 U.S. 104, 137 (1978) 438 U.S. at 137 (takings claim rejected in part because petitioner had "not sought approval for the construction of a smaller structure" than the 50-story office building to be built on top of Penn Central Station); Agins, 447 U.S. at 255 (challenge to zoning ordinance that permitted up to five single family dwellings to be built on five-acre tracts dismissed because petitioner did not submit development plans to local officials, who would have determined what petitioner would have been allowed to build). Return to text.

[107] Accord Roberts, supra note 105, at 22. Return to text.

[108] See Williamson County, 473 U.S. 199-200. In Williamson County the developer obtained initial approval for a subdivision of 736 units in a single-family residential zone. Id. at 177. However, the planning commission subsequently amended the zoning ordinance to permit less intensive use, known as "down-zoning", and denied subdivision approval. Id. The Court ruled that the developer had not met the finality requirement because he did not seek a variance, which could have overridden the planning commission's rejection. Id. at 186. Return to text.

[109] See MacDonald, Sommer & Frates v. County of Yolo, 477 U.S. 340, 347 (1986). In this case, the planning commission denied a subdivision proposal for 159 units, and petitioner argued that the rejection effectively restricted use of the land to only agricultural activities, a low intensity use. The Court rejected this argument and found as follows:

Here plaintiff applied for approval of a particular and relatively intensive residential development and the application was denied. The denial of that particular plan cannot be equated with a refusal to permit any development, and plaintiff concedes that the property is zoned for residential purposes in the County general plan and zoning ordinance. Land use planning is not an all-or-nothing proposition. A governmental entity is not required to permit a landowner to develop property to [the] full extent he might desire or be charged with an unconstitutional taking of the property. Here, as in Agins, the refusal of the defendants to permit the intensive development desired by the landowner does not preclude less intensive, but still valuable development. Accordingly, the complaint fails to state a cause of action.
Id. at 347. Return to text.

[110] See MacDonald, 477 U.S. at 350 ("The local agencies charged with administering regulations governing property development are singularly flexible institutions; what they take with one hand they may give back with the other."). A land use entity's ability to postpone a final determination has prevented many a property owner from obtaining a fair hearing within a reasonable time frame. In one extreme federal case, the land use agency took six years to make a final determination. In that case, the court required the petitioner to wait until the agency made a final determination. See Norco Construction, Inc. v. King County, 801 F.2d 1143, 1145 (9th Cir. 1986). When a governmental entity takes an inordinate amount of time in making a final determination, some courts have indicated their willingness to apply the futility exception, but few courts have applied such exception. See, e.g., Kinzli v. City of Santa Cruz, 818 F.2d 1449, 1454 n.5 (9th Cir. 1987), cert. denied, 484 U.S. 1043 (1988). Return to text.

[111] Accord Overstreet, supra note 101, at 124 ("[F]ederal courts dislike adjudicating land use cases and have applied the ripeness doctrine harshly in an effort to close the federal court house doors to land use taking cases."). But see Roberts, supra note 105. Return to text.

[112] Blaesser, supra note 101, at 90-136. Return to text.

[113] Four hundred and fifty-eight local agencies had to prepare a comprehensive plan, and by 1991 all had completed their plan. HOUSE COMM. ON COMM'Y AFF., 1995 FLORIDA LOCAL GOVERNMENT FORMATION MANUAL I-4 (4th ed. 1995) There are 11 regional planning councils in Florida, five water management districts, and 1,040 special districts of which 92 are not active. HOUSE COMM. ON NAT. RES., PROGRAM REVIEW OF SPECIAL DISTRICTS 1, 21 (Nov. 1994). Return to text.

[114] See FLA. STAT. §§ 163.3204, 186.509, 187.201(26) (1995). Return to text.

[115] A recent article describes environmental and land use permitting as follows:

Under Florida's current environmental regulatory framework, a person engaging in water or land altering activity is likely required to secure separate permits from the Department of Environmental Protection (DEP), a Water Management District (WMD), and local government. Wetland impacts are regulated by these state, regional, and local entities through wetland resource, surface water management, sovereign submerged lands, coastal construction, mangrove alteration, and in some cases, city or county permitting programs. At the federal level, there is also a requirement to obtain a permit from the United States Army Corps of Engineers ("Corps") for the same development activities that impact wetlands.
John J. Fumero, At a Crossroads in Natural Resource Protection and Management in Florida, 19 NOVA L. REV. 77, 80 (1994). Return to text.

[116] See Richard A. Epstein, Property as a Fundamental Civil Right, 29 CAL. WESTERN L. REV. 187 (1992). Return to text.

[117] In spite of successful permitting at the local level, a state agency can veto a project, even if the project is much desired by local government. For example, the Southwood development project in Leon County, Florida, sponsored by the St. Joe Paper Co., is an ambitious plan to transform 6,000 acres in economically depressed southeast Leon County to a development which will eventually employ 2,000 people and house 30,000 more in middle-class housing. Planning on this project began in March 1994 and was negotiated by the City of Tallahassee, Leon County, and St. Joe Paper Co. The plan has been submitted twice to the Department of Community Affairs and twice it has been rejected. The local officials "thought [they] had answered all [the State's] questions," but the Department of Community Affairs denied approval because the project does not contain enough affordable housing and would permit St. Joe Paper Co. to harvest pine trees. See Savannah Blackwell, State Halts Growth Plan: The DCA Ruling Puts the Brakes on the Southwood Development, TALL. DEM., June 8, 1995, at C2. The issue is now being litigated. Interview with Richard Geshwiller, Chief of Planning, City of Tallahassee-Leon County Planning Agency (September 27, 1995) (notes on file with author). Return to text.

[118] See generally, RICHARD F. BABCOCK & CHARLES SIEMON, THE ZONING GAME REVISITED (1985); RICHARD F. BABCOCK, THE ZONING GAME (1966). Return to text.

[119] Many examples can be cited. In spring 1994, the Tallahassee-Leon County Planning Commission considered a subdivision application for a mobile home development, which was to be located at the fringe of an older, established community of single-family homes on the south side of Tallahassee. See Savanah Blackwell, Neighborhood Up in Arms over Comp Plan, Trailers, TALL. DEM., Jan 10, 1995, at B1, B3. The lots would be owned by the mobile home occupant and the plan provided for two-car parking for each lot. Id. at B1. The community adjoining the proposed development vigorously opposed the subdivision and attacked the development at lengthy and raucous public hearings. Id. The petitioner, the developer of the mobile home park subdivision, had complied with all zoning code and comprehensive plan requirements and had exceeded them as requested by the city planning officials. Id. at B3. Nonetheless, during the second public hearing, in the din of the upset neighbors, the planning commission denied approval. Penelope M. Carrington, Board Rejects Trailer Park Plan, TALL. DEM., Jan 19, 1995, at D1, D2. The Tallahassee City Commission, which heard the appeal, stood behind the planning commission's decision, and authorized the city to purchase the parcel in question. Savanah Blackwell, Residents Defeat Mobile Homes, TALL. DEM., March 23, 1995, at 6B; see generally BABCOCK & SIEMON, supra note 118, at 5, 11-36, 183-206 (describing some land use cases as "hysterical" and reminding attorneys to "[n]ever ignore the political climate when trying a zoning case"). Return to text.

[120] 627 So. 2d 469 (Fla. 1993). Return to text.

[121] 589 So. 2d 1337 (Fla. 3d DCA 1991). Return to text.

[122] Snyder holds that a site-specific rezoning is a quasi-judicial proceeding, and upon judicial review the local governing body's decision is subject to strict scrutiny for compliance with the local comprehensive plan. 627 So. 2d at 473-75. Additionally, the local government's decision must be supported by "substantial competent evidence." Id. Moreover, Snyder is not limited to site-specific rezoning. Snyder has been applied to site plan approvals, see Park of Commerce Ass'n v. City of Delray Beach, 636 So. 2d 12, 15 (Fla. 1994), and amendments to comprehensive plans, see Florida Inst. of Technology, Inc. v. Martin County, 641 So. 2d 898, 899-900 (Fla. 4th DCA. 1994). Quasi-judicial proceedings are more formal than quasi-legislative proceedings: ex parte communications are not allowed, Jennings, 589 So. 2d at 1341, witnesses may be cross-examined, expert witnesses may testify, transcripts can be made available, and opposing factions must receive copies of all notices and be given an opportunity to testify. See generally, Mark P. Barnebey & Bonnie T. Polk, Quasi-Judicial Land Use Hearings: Does Your Evidence Pass Muster?, FLA. B.J. 42-47 (March 1995) (describing cases therein); see also Section 28 Partnership, Ltd. v. Martin County, 642 So. 2d 609 (Fla. 4th DCA 1994) (analyzing the distinction between a quasi-legislative and a quasi-judicial zoning decision). Jennings has been somewhat modified by legislative fiat, which has relaxed the formality of quasi-judicial proceedings by permitting local officials to communicate with citizens if the local government adopts a resolution permitting such communications. 1995, Fla. Law ch. 95-352 (codified at FLA. STAT. § 286.0115 (1995)).

More generally, the need to be able to determine whether local politics has had an undue influence on local land use decisionmaking has caused courts to emphasize the need for local decisions to be made "in accordance" or "consistent with" the comprehensive plan. Snyder, 627 So. 2d at 476; Machado v. Musgrove, 519 So. 2d 629 (Fla. 3d DCA 1987); Fasano v. Board of County Comm'rs, 507 P.2d 23 (Ore. 1973) (EN BANC). Return to text.

[123] See MacDonald, Sommer & Frates v. County of Yolo, 477 U.S. 340, 350 (1986) ("[local agencies] are singularly flexible institutions"). Return to text.

[124] Snyder, 627 So. 2d at 475. Return to text.

[125] Id. In a quasi-judicial matter, if the applicant shows that a land use change is consistent with the comprehensive plan, the burden of proof shifts to the local government to show that maintaining the existing classification accomplishes a legitimate governmental purpose. Id. at 476. The Snyder holding clearly bothered the 1994 Property Rights Task Force. See 1994 PROPERTY RIGHTS REPORT, supra note 28, at 58-63, and probably influenced its recommendation to adopt legislation substantially similar to the Property Rights Act. Return to text.

[126] See generally Carol M. Rose, Planning and Dealing: Piecemeal Land Controls as a Problem of Local Legitimacy, 71 CAL. L. REV. 837 (1983). Return to text.

[127] To deter neighbors from taking an adversary position, some developers have filed SLAPP suits (strategic lawsuits against public participation), usually alleging tortious interference with business relations or defamation. See John C. Barker, Common Law and Statutory Solutions to the Problem of SLAPPs, 26 LOY. L.A. L. REV. 395 (1993). Alternatively, sophisticated developers include in their planning strategy public relations campaigns to win local support. Dwight H. Merriam et al., Grass Roots Lobbying, in ALI-ABA LAND USE INSTITUTE, PLANNING REGULATION, LITIGATION, EMINENT DOMAIN AND COMPENSATION 769 (1994). Return to text.

[128] From an efficiency standpoint, government regulations should allocate to developers only spill-over costs or externalities caused by new development that otherwise would be shifted to nonconsenting third parties. See Ronald H. Coase, The Problem of Social Cost, 3 J. LAW & ECON. 1 (1960); Guido Calabresi & A. Douglas Melamed, Property Rules, Liability Rules, and Inalienability: One View of the Cathedral, 85 HARV. L. REV. 1089 (1972). For example, local officials may exact as terms and conditions of a building permit, costs that properly should be financed by the entire community. Developer Philip Emmer cites as an example his having been required by city officials to build a wall around a subdivision, the walls having been demanded by a neighborhood group. He argues that if the city had to pay for the wall, it would have built a much less expensive one. See Binkley, Solution to Land Use Law, supra note 18, at F1. Return to text.

[129] See Robert C. Ellickson, Alternatives to Zoning: Covenants, Nuisance Rules, and Fines as Land Use Controls, 40 U. CHI. L. REV. 681, 701-02 (1973):

The pervasiveness of special influence is inherent in the zoning system. Judicial insistence on uniform standards for decision, a basic way of preventing favoritism in government, is not possible in the case of zoning; the name itself suggests a system of nonuniform regulation. Since the courts cannot easily distinguish good planning from bad, judicial checks on unfair variations in land use restrictions have been minimal. Studies have documented the lawlessness of zoning variance decisions in most communities. Many courts have stopped trying to police local zoning and consistently sustain the local government's action under the "presumption of validity" given to zoning provisions.
Robert C. Ellickson, Suburban Growth Controls: An Economic and Legal Analysis, 86 YALE L.J. 385, 407-408 (describing local zoning to be a system in which campaign contributions, fees to politically connected attorneys, and personal relationships with planning officials and public officials are key to positive outcomes); EPSTEIN, TAKINGS, supra note 26, at 265 ("[S]trict judicial supervision of the zoning process is . . . appropriate to correct the unstable political situation . . . judicial deference to local action is wholly inappropriate."); see generally SUSAN ROSE- ACKERMAN, CORRUPTION: A STUDY IN POLITICAL ECONOMY (1988); BABCOCK, supra note 118; see also FEDERALIST NO. 10, supra note 24, at 83 ("The smaller the society, the fewer probably will be the distinct parties and interests composing it . . . and the smaller the compass within which they are placed, the more easily will they unite to execute their plans of oppression."). Return to text.

[130] I have borrowed this caption from Carol M. Rose, Mahon Reconstructed: Why the Takings Issue Is Still a Muddle, 57 S. CAL. L. REV. 561 (1984). Return to text.

[131] U.S. CONST. amend. V & XIV; FLA. CONST. art. X, § 6(2) & art. I, § (2). Return to text.

[132] The 1976 Property Rights Report committee contacted practitioners and academic and government officials practicing in this area in the State of Florida and concluded that "the [eminent domain] system appears to be working well and appears to be fundamentally fair." 1976 PROPERTY RIGHTS REPORT, supra note 3, at 68. Return to text.

[133] These cases are commonly referred to as regulatory takings or inverse condemnation cases. Return to text.

[134] 260 U.S. 393 (1922). Return to text.

[135] Id. at 415. Return to text.

[136] Id. In addition, scholars have struggled to reconcile the "too far" standard of Mahon with the Court's earlier pronouncement in Mugler v. Kansas, 123 U.S. 623 (1887), in which the Court found that a government regulation that forced the defendant to close his brewery was a valid exercise of the police power and did not amount to a taking. This holding was based on the noxious use exception, which provides that a regulation of land use is not a taking if it is to control some "evil" or "noxious" use. Mugler, 123 U.S. at 640; see generally FRED P. BOSSELMAN ET AL., THE TAKINGS ISSUE (1973); William B. Stoebuck, Police Power, Takings, and Due Process, 37 WASH. & LEE L. REV. 1057 (1980). Return to text.

[137] Keystone Bituminous Coal Ass'n v. DeBenedictis, 480 U.S. 470, 512 (1987) (stating that purpose of Fifth Amendment is to prevent "the public from loading upon one individual more than his just share of the burdens of government, and [it] says that when he surrenders to the public something more and different from that which is exacted from other members of the public, a full and just equivalent shall be returned to him")(quoting Monongahela Navigation Co. v. United States, 148 U.S. 312, 325 (1893)); Armstrong v. United States, 364 U.S. 40, 49 (1960) ("The Fifth Amendment's guarantee that private property shall not be taken for a public use without just compensation was designed to bar Government from forcing some people alone to bear public burdens which, in all fairness and justice, should be borne by the public as a whole."). Return to text.

[138] Mahon, 260 U.S. at 417 (Brandeis, J., dissenting); see Sax, Takings & Police Powers, supra note 23, at 39 ("Under this . . . theory then the constitutional issue turns upon whether the government has asserted a proprietary interest for itself in the affected property.") Return to text.

[139] Penn Central Transp. Co. v. City of New York, 438 U.S. 104, 124 (1978). Return to text.

[140] 112 S. Ct. 2886 (1992). Return to text.

[141] The Court, speaking through Justice Scalia, recharacterizes the police power noxious use cases, Hadacheck v. Sebastian, 239 U.S. 394 (1915), Miller v. Schoene, 276 U.S. 272 (1928), and Goldblatt v. Hempstead, 369 U.S. 590 (1962), as "simply the progenitor[s] of our more contemporary statements that 'land-use regulation does not effect a taking if it substantially advance[s] legitimate state interests.' " Lucas, 112 S. Ct. at 2897. The approach under Lucas protects expectations based on traditional common law notions of property rights. See infra notes 185-190. Similarly, Justice Holmes emphasized in Mahon that the Kohler Act went too far because it "purports to abolish what is recognized in Pennsylvania as an estate in land." 260 U.S. at 414. Return to text.

[142] Loretto v. Teleprompter Manhattan CATV Corp., 458 U.S. 419 (1982); see Yee v. City of Escondido, 112 S. Ct. 1522 (1992) (rejecting the lower court's finding that the combination of rent control and landlord-tenant statutes conceded to renters virtual physical possession of mobile home lots). Return to text.

[143] Lucas, 112 S. Ct. at 2893. Return to text.

[144] See Graham v. Estuary Properties, Inc., 399 So.2d 1374, 1380 (1981); Newman v. Carson, 280 So. 2d 426 (Fla. 1973); State Plant Bd. v. Smith, 110 So. 2d 401 (Fla. 1959); Varholy v. Sweat, 15 So. 2d 267 (Fla. 1943). Return to text.

[145] Graham, 399 So. 2d at 1380. Return to text.

[146] Estuary Properties, Inc. v. Askew, 381 So. 2d 1126, 1138 (Fla. 1979) ("[W]hile government clearly has the right to expropriate private property for purposes beneficial to the general public, it cannot require a single property owner to bear the cost of such general benefits. This principle, which is the essence of the 'property clauses' of the United States and Florida Constitutions, commands that the cost of public benefits be borne by the public.") (citing State Road Dep't v. Tharp, 1 So. 2d 868 (Fla. 1941)). Return to text.

[147] Storer Cable T.V. of Fla., Inc. v. Summerwinds Apartments Ass'n, Ltd., 493 So. 2d 417 (Fla. 1986) (Under article X, section 6 and article I, sections 2 and 9 of the Florida Constitution, as well as the Fifth and Fourteenth amendments of the United States Constitution, the Florida supreme court found that a statute permitting cable companies to install cable equipment on property that a tenant did not specifically have the right to use was a taking because it resulted in a permanent, physical invasion.) Return to text.

[148] Askew, 381 So. 2d at 1137. Return to text.

[149] Such uncertainty and inconsistency is increased by the way in which courts apply the test—often blending due process and takings analysis and, in effect, balancing the public purpose served by the regulation against the economic harm imposed on the individual landowner. E.g., Graham, 399 So. 2d at 1381 (finding that the public interest in preserving the integrity of the environment "promotes the welfare of the public, prevents a public harm, and has not been arbitrarily applied"); see generally Glen E. Summers, Private Property Rights: Toward a Takings Jurisprudence Uncorrupted by Substantive Due Process, 142 U. PA. L. REV. 837, 862-877 (1993) (identifying this blended approach and deploring "balancing" as clearly an inadequate protection of property rights); Stoebuck, supra note 136, at 1065 ("Balancing is a false taking test . . . . [It] is also too dangerous to function as a test for a police power taking."). Return to text.

[150] 438 U.S. at 124. Return to text.

[151] Id. Return to text.

[152] In the leading modern regulatory takings case in Florida, Graham, 399 So. 2d at 1374, the Florida Supreme Court reformulated the Penn Central balancing test into six non-exhaustive factors:

1. Whether there is a physical invasion of the property;
2. The degree to which there is a diminution in value of the property, or [] whether the regulation precludes all economically reasonable use of the property;
3. Whether the regulation confers a public benefit or prevents a public harm;

4. Whether the regulation promotes the health, safety, welfare, or morals of the public;
5. Whether the regulation is arbitrarily and capriciously applied; [and]
6. The extent to which the regulation curtails investment-backed expectations.
Id. at 1380-81.

Reahard is a decision involving permitting of a subdivision on a 40-acre piece of waterfront property, once part of a larger parcel of 540 acres purchased 48 years earlier. The court listed a total of eight factors as relevant to the inquiry of whether the landowner has been deprived of all or substantially all economically viable use of the property:

(1)the history of the property—when was it purchased? How much land was purchased? Where was the land located? What was the nature of title? What was the composition of the land and how was it initially used?;
(2)the history of development—what was built on the property and by whom? How was it subdivided and to whom was it sold? What plats were filed? What roads were dedicated?;
(3)the history of zoning and regulation—how and when was the land classified? How was use proscribed? What changes in classifications occurred?;
(4)how did development change when title passed?;
(5)what is the present nature and extent of the property?;
(6)what were the reasonable expectations of the landowner under state common law?;
(7)what were the reasonable expectations of the neighboring landowners under state common law?; and
(8)perhaps most importantly, what was the diminution in the investment-backed expectations of the landowner, if any, after passage of the regulation?
Reahard v. Lee County, 968 F.2d 1131, 1136 (11th Cir. 1992), cert. denied, 115 S. Ct. 1693 (1995). These factors are duplicated in the dispute resolution portion of the Act as factors to be considered in the inordinate burden determination. Cf. FLA. STAT. § 70.51(18) (1995).

In Florida Rock Industries, Inc., the court listed other factors to be considered in addition to the loss of economic use to the property owner as a result of the regulation imposed:

[A]re there direct compensating benefits accruing to the property, and others similarly situated, flowing from the regulatory environment? Or are benefits, if any, general and widely shared through the community and the society, while the costs are focused on a few? Are alternative permitted activities economically realistic in light of the setting and circumstances, and are they realistically available? In short, has the Government acted in a responsible way, limiting the constraints on property ownership to those necessary to achieve the public purpose, and not allocating to some number of individuals, less than all, a burden that should be borne by all?
Florida Rock Indus., Inc. v. United States, 18 F.3d 1560, 1571 (Fed. Cir. 1994). Return to text.

[153] See Lucas v. South Carolina Coastal Council, 112 S. Ct. 2886, 2893 (1992). Return to text.

[154] See DAVID L. CALLIES ET AL., CASES AND MATERIALS ON LAND USE 283 (2d ed. 1994). Return to text.

[155] See Lucas, 112 S. Ct. at 2893; See also Agins v. City of Tiburon, 447 U.S. 255, 260 (1980). Return to text.

[156] Id. Return to text.

[157] The deferential standard found in Berman v. Parker, 348 U.S. 26 (1954), an eminent domain takings case, is often applied to this prong of the takings analysis. The Berman standard has been characterized as a virtual abandonment of judicial review. In Berman the Court stated:

We do not sit to determine whether a particular housing project is or is not desirable. The concept of the public welfare is broad and inclusive . . . . The values it represents are spiritual as well as physical, aesthetic as well as monetary. It is within the power of the legislature to determine that the community should be beautiful as well as healthy, spacious as well as clean, well-balanced as well as carefully patrolled. In the present case, the Congress and its authorized agencies have made determinations that take into account a wide variety of values. It is not for us to reappraise them.
348 U.S. at 38 (citations omitted); see also Hawaii Housing Auth. v. Midkiff, 467 U.S. 229, 243 (1984) ("When the legislature's purpose is legitimate and its means are not irrational, our cases make clear that empirical debates over the wisdom of takings . . . are not to be carried out in the federal courts."); see generally EPSTEIN, TAKINGS, supra note 26.

The Court's frustration with virtual abandonment of the governmental purpose requirement is evidenced in Lucas, where it voiced skepticism at the Legislature's finding that it was necessary to prohibit construction along the area where Lucas had applied for a building permit. 112 S. Ct. at 2898. Other owners' structures were permitted to remain and the Commission subsequently permitted construction subject to a hardship procedure. Id. The Court stated that to scrutinize a legislative governmental purpose "amounts to a test of whether the legislature has a stupid staff." Id. at 2898, n.12.

However, this analysis is not always entirely deferential. Professor Merrill analyzed the application of the governmental purpose test in takings cases and found that between 1964 and 1985 over 16% of the takings cases in state appellate courts were invalidated based on the governmental purposes prong. Thomas W. Merrill, The Economics of Public Use, 72 CORNELL L. REV. 61, 96 (1986). Professor Merrill concluded that "judicial enforcement of the public use requirement is not a thing of the past." Id. Return to text.

[158] 483 U.S. 825 (1987). In Nollan, Justice Scalia argued that the level of review in takings cases should not be so deferential to legislative judgement as in due process and equal protection cases. Id. at 834 n.3 ("[T]here is no reason to believe . . . that so long as the regulation of property is an issue the standards for takings challenges, due process challenges and equal protection challenges are identical . . . ."). Return to text.

[159] 114 S. Ct. 2309 (1994). Return to text.

[160] See Nollan, 483 U.S. at 837 (holding unconstitutional permit conditions that require a property owner to deed portions of her property to the government because the exaction was not reasonably related to the governmental purpose, and noting that such exactions can be justified only if the government "make[s] some sort of individualized determination that the required dedication is related both in nature and extent to the impact of the proposed development"); Dolan, 114 S. Ct. at 2319-20 (holding that there must be an "essential nexus" and "rough proportionality" between the governmental interest and exactions required in a land use permit).

It is not entirely clear that permit exaction cases should be treated as takings cases. In Lucas, the Supreme Court cited Nollan as a takings case in which a regulation denied a property owner all economically viable or productive use of the land. 112 S. Ct. at 2893.

Some would argue that such heightened scrutiny applies to exaction cases where there was a physical invasion. In Nollan, the California Coastal Commission required a public easement bounded by the Nollan's seawall on one side and mean high-tide mark on the other side. In Dolan, the local planning commission required Dolan to deed the city a portion of her property in and adjacent to the 100-year flood plain so that the city could control flooding and build a pathway. 114 S. Ct at 2314. Return to text.

[161] United States v. Causby, 328 U.S. 256 (1946), cited in Penn Central Transp. Co. v. City of New York, 438 U.S. 104, 105 (1981). See Sax, supra note 23, at 55-60. Return to text.

[162] See, e.g., San Antonio River Auth. v. Garrett Bros., 528 S.W.2d 266 (Tex. Civ. App. 1975) (city officials interrupted plaintiff-developer's development of his property by refusing a permit for installation of utilities because the development of the land would increase the city's costs of acquiring the land for a dam project the city was planning); Nemmers v. City of Dubuque, 716 F.2d 1194 (8th Cir. 1983) (government rezoned plaintiff's property to light industrial use, plaintiff spent a substantial amount of money to develop the property and donated substantial sums to the city and county, but the city rezoned again; the court found that the plaintiff had acquired a vested right to continue developing); Archer Gardens, Ltd. v. Brooklyn Ctr. Dev. Corp., 468 F. Supp. 609 (S.D.N.Y. 1979) (conspiracy between city and private developer to inhibit private landowner's ability to sell or lease land, which ultimately resulted in title forfeiture was a taking). See generally Sax, supra note 23; William C. Leigh and Bruce W. Burton, Predatory Governmental Zoning Practices and the Supreme Court's New Takings Clause Formulation: Timing, Value, and R.I.B.E., 1993 B.Y.U. L. REV. 827 (1993); but see Cambria Spring Co. v. City of Pico Rivera, 217 Cal. Rptr. 772 (Cal. Ct. App. 1985); Redevelopment Agency v. Contra Costa Theater, Inc., 185 Cal. Rptr. 159 (Cal. Ct. App. 1982); Toso v. City of Santa Barbara, 162 Cal. Rptr. 210 (Cal. Ct. App. 1980), cert. denied, 449 U.S. 901 (1980). Return to text.

[163] Although in takings analysis, courts do not explicitly articulate an equal protection concern in assessing the legitimacy of a regulation, markedly disparate treatment of the petitioner has clearly influenced the Supreme Court's view as to the reasonableness of the governmental entity's action. In Nollan, the Court called the Coastal Commission's permit condition "extortion" because the Court believed the Nollans were singled out and force to bear a disproportionate share of the cost of the Commission's beach access program. 483 U.S. at 835 n. 4 ("If the Nollans were being singled out to bear the burden of California's attempt to remedy these problems, although they had not contributed to it more than other coastal landowners, the State's action, even if otherwise valid, might violate [the] Takings Clause . . .."). In Lucas, the Court emphasized that Lucas's neighbors had been permitted to build dwellings and allowed to have their houses stand, while Lucas was now prohibited from building. 112 S. Ct. at 2889; but see, Penn Central, 438 U.S. at 133 ("zoning laws often affect some property owners more severely than others but have not been held to be invalid on that account"). Professor Summers justifies this higher level of scrutiny in these cases because "[w]hen individuals or small groups are singled out by government and forced to surrender property rights, they may have little ability to appeal to the political process . . . . a government that takes from a few and gives to many may be quite popular indeed." Summers, supra note 149, at 880. Return to text.

[164] Penn Central, 438 U.S. at 124. Return to text.

[165] Loretto v. Teleprompter Manhattan CATV Corp., 458 U.S. 419 (1982). Return to text.

[166] Hodel v. Irving, 481 U.S. 704 (1987). Return to text.

[167] Compare Penn Central, 438 U.S. at 127, 138 n.36 (emphasizing that the holding was based on the finding that Penn Central's current use of the property was "economically viable") with Lucas, 112 S. Ct. at 2893 (examining whether regulation denies "all economically beneficial or productive use of land"). Return to text.

[168] See Nollan v. California Costal Comm'n, 483 U.S. 825, 834 (1987) (citing Agins v. City of Tiburon, 447 U.S. 255, 260 (1980)) (a regulation is a taking if it denies property owner of "economic viable use" of her property); Keystone Bituminous Coal Ass'n v. DeBenedictis, 480 U.S. 470, 485 (1987); MacDonald, Sommer & Frates v. County of Yolo, 477 U.S. 340, 349 (1986); Loveladies Harbor, Inc. v. United States, 28 F.3d 1177 (Fed. Cir. 1994) (to establish individualized financial harm, petitioner had to show "a serious financial loss from the regulatory imposition."); San Diego Gas & Elec. Co. v. City of San Diego, 450 U.S. 621 (1981); Mahon v. Pennsylvania Coal Co., 260 U.S. 393, 414 (1922) ("To make it commercially impracticable to mine certain coal has very nearly the same effect for constitutional purposes as appropriating or destroying it."); see generally Lynda J. Oswald, Cornering the Quark: Investment-Backed Expectations and Economically Viable Uses in Takings Analysis, 70 WASH. L. REV. 91, 117-120 (1995). Return to text.

[169] Lucas, 112 S. Ct. at 2893 (stating that "we have found categorical treatment appropriate . . . where regulation denies all economically beneficial or productive use of land"). For Justice Scalia, total deprivation of use is comparable to physical appropriation. Id. at 2894. An exception exists if state nuisance or tort law would have permitted a total deprivation. Id. at 2900. Return to text.

[170] See, e.g., Skaw v. United States, 740 F.2d 932 (Fed. Cir. 1984), cert. denied, 488 U.S. 854 (1988); Jengsen v. United States, 657 F.2d 1213 (Ct. Cl. 1981), cert. denied, 455 U.S. 1017 (1982); Arnold v. Prince George's County, 311 A.2d 223 (Md. 1973); Bonds v. City of Webster Groves, 432 S.W. 2d 777 (Mo. Ct. App. 1968); Oriental Blvd. Co. v. Heller, 297 N.Y.S.2d 431 (App. Div. 1969). Return to text.

[171] Goldblatt v. New York, 369 U.S. 590, 592 (1962), 369 U.S. at 592 (deprivation of most beneficial use does not constitute a taking); Penn Central, 438 U.S. at 136-137; see also Graham v. Estuary Properties, 399 So. 2d 1374, 1381 (1981); Lee County v. Sunbelt Equities, 619 So. 2d 996, 1006 (Fla. 2d DCA 1993) (citing Penn Central). Return to text.

[172] Hadacheck v. Sebastian, 239 U.S. 394 (1915); Miller v. Schoene, 276 U.S. 272 (1928); United States v. Causby, 328 U.S. 256 (1946); Griggs v. Allegheny County, 369 U.S. 84 (1962); Penn Central, 438 U.S. at 136. Return to text.

[173] See generally Oswald, supra note 168; Richard A. Epstein, Lucas v. South Carolina Coastal Council: A Tangled Web of Expectations, 45 STAN. L. REV. 1369 (1993). Return to text.

[174] Penn Central is the only Supreme Court case that addresses the issue of adequate rate of return in takings law, and it does so obliquely. In Penn Central, the Court found that the railroad company's present use of the premises for its operations and leases was an adequate return. 438 U.S. at 135.

Profit is relevant to takings analysis, although the Supreme Court does not always use the term "profit." See Mahon v. Pennsylvania Coal Co., 260 U.S. 292, 414 (1922) ("What makes the right to mine coal valuable is that it can be exercised with profit."); Penn Central, 438 U.S. at 137 n.36 (ability to use property in "gainful fashion"); Lucas v South Carolina Coastal Council, 112 S. Ct. 2886, 2894 (1992) ("productive options" other than leaving land in its natural state); Hamilton Bank of Johnson City, 473 U.S. 172, 191 (1985) (not profitable to develop [only] 67 units); Keystone Bituminous Coal Ass'n, 480 U.S. at 501 (property interest cannot be used profitably by one who does not also possess the surface or mineral estate). Other courts also have been willing to consider whether the uses under the regulation permit a reasonable return. E.g., Florida Rock Indus., Inc. v. United States, 18 F.3d 1560 (Fed. Cir. 1994); Orion Corp. v. State, 109 Wash. 2d 621, 642 (Wash. 1987) ("present, possible, and reasonably profitable use"), cert. denied, 486 U.S. 1022 (1988); Hornstein v. Barry. 530 A.2d 1177 (D.C. App. 1987) ("reasonable financial return"); Wheeler v. City of Pleasant Grove, 833 F.2d 267, 271 (11th Cir. 1987) ("the landowner's loss takes the form of an injury to the property's potential for producing income or an expected profit"). However, lower courts have not uniformly accepted that profit is relevant to takings analysis. See, e.g., Park Ave. Tower Assocs. v. City of New York, 746 F.2d 135 (2d Cir. 1984) (inability of owners to receive reasonable return on their investment did not, in itself, amount to an unconstitutional taking), cert. denied, 470 U.S. 1087 (1985); William C. Haas and Co. v. City of San Francisco, 605 F.2d 1117 (9th Cir. 1979) (impairment of economic value of property due to rezoning, although substantial, was insufficient to give rise to constitutional claim to just compensation), cert denied, 445 U.S. 928 (1980); MacLeod v. County of Santa Clara, 749 F.2d 541, 549 (9th Cir. 1984), cert. denied, 572 U.S. 1009 (1985). In MacLeod, the Court found that denial of a permit to harvest timber did not deny the owner the economically viable use of the property amounting to a taking. The landowner could still raise cattle on it. The fact that the owner would not realize a profit over expenses on land did not mean that the denial of the harvesting permit was a taking. Return to text.

[175] This segmentation issue is brought into sharper focus with the mining extraction cases. Compare Mahon 260 U.S. at 414 (regulation requiring mining companies to operate mining so as not to affect habitable houses was a taking, because private deeds granted to the mining companies such rights) with Keystone Bituminous Coal, 480 U.S. at 470, 498 (taking not found where statute required mining companies to leave 27 million tons (2% of rights in coal) in place). In Lucas, Justice Scalia muses that when "a regulation requires a developer to leave 90% of a rural tract in its natural state, it is unclear whether we would analyze the situation as one in which the owner has been deprived of all economically beneficial use of the burdened portion of the tract, or . . . , [as one in which the owner] has suffered a mere diminution in value of the tract as a whole." 112 S. Ct. at 2894 n.7; see also Florida Rock Indus., Inc., 18 F.3d at 1572 n.32 ("Property interests are about as diverse as the human mind can conceive."); Jed Rubenfeld, Usings 102 YALE L. J. 1077, 1158-61 (1993). Return to text.

[176] Should a court determine whether there is a taking by measuring the residual fair market value of the property? See Florida Rock Indus., Inc., 18 F.3d at 1575 (Nies, J., dissenting) (market value of land is not relevant to takings analysis). What evidence should the court consider in determining fair market value? See id. at 1567 (whether, for the purposes of takings analysis, fair market value of property should include speculative value). Return to text.

[177] In Lucas, the relevant timeline was when the petitioner acquired the parcel. Lucas, 112 S. Ct. at 2899. But often, development of a large parcel occurs over an extended period. In Reahard, the parcel was acquired by petitioner's parents 48 years prior to petitioner's claim and developed over that period. The court remanded the case, in part, for the lower court to determine the relevant timeline. Reahard v. Lee County, 968 F.2d 1131, 1136 (11th Cir. 1992), cert. denied, 115 S. Ct. 1693 (1995). Return to text.

[178] In Lucas, Justice Scalia recognized that there are no guidelines as to what level of denial of economically viable use, short of 100%, rises to a taking and conceded that in some cases denial of 95% of economically viable use may not be a taking. Lucas, 112 S. Ct. at 2895 n.8. Past Supreme Court cases have found no taking even when denial of use was substantial. See Village of Euclid, 272 U.S. at 365 (75% diminution); Hadacheck v. Sebastian, 239 U.S. 394, 405 (1915) (88% diminution); see CALLIES ET AL., supra note 154, at 32. Return to text.

[179] Justice Scalia straightforwardly acknowledged that "[u]nsurprisingly, this uncertainty regarding the composition of the denominator in our 'deprivation' fraction has produced inconsistent pronouncements by the Court." Lucas, at 112 S. Ct. at 2895 n.7 (comparing Pennsylvania Coal Co. with Keystone Bituminous Coal Ass'n). Return to text.

[180] This concept was first mentioned as the "primary expectation concerning the use of the parcel" in Penn Central, 438 U.S. at 136. RIBE is a term of art. Accord Epstein, Expectations, supra note 173, at 1370. Return to text.

[181] See Steven Medema, Making Choices and Making Law: An Institutional Perspective on the Takings Issue, in LAW AND ECONOMICS PERSPECTIVES, supra note 24, at 45, 46 ("losses are ubiquitous: any legal change restricts someone's opportunity set, that is, engenders loss [and expands someone else's opportunity sets, that is, engenders gain.] The question that remains is whether the losers will be compensated for their losses."). Return to text.

[182] See Mahon, 260 U.S. at 412; accord Loveladies, 28 F.3d at 1176 ("the second criterion . . . was intended to ensure that not every restraint imposed by government to adjust to the competing demands of private owners would result in a takings claim"). Return to text.

[183] It is useful to begin by observing that the term used in takings jurisprudence is expectation, not interest or right. The use of the term "expectation" indicates that a property owner's expectation is something less than a legal interest or right, but something more than mere speculation. See Oswald, supra note 168, at 108. Return to text.

[184] Professor Epstein would prefer the use of the term "reasonable expectations" rather than "investment-backed" since the latter overly emphasizes whether the property owner has made an "investment," rather than whether the investor is reasonably entitled to protection under the law. Epstein, Expectations, supra note 173, at 1370. Return to text.

[185] Lucas, 112 S. Ct. at 2888 ("[T]akings jurisprudence . . . has traditionally been guided by the understandings of our citizens regarding the content of, and the State's power over the `bundle of rights' that they acquire when they obtain title to property."). Professor Epstein, explains why this formalistic view of property is important:

[P]roperty rights . . . are only of value if the holder . . . is in a position to preserve their use against all comers. Thus, there are legal rules to protect . . . exclusive rights of possession of privately owned property . . . . [Their] importance cannot be underestimated. The rules of trespass and nuisance are for the protection of property interests, and they insure that once the rights in property have been assigned to one person . . . they cannot be taken or destroyed by another individual.
Epstein, Property, supra note 116, at 191. Return to text.

[186] See Loretto, 458 U.S. at 419 (statute that permitted small television antennas to be placed on roofs was a taking); Causby, 328 U.S. at 256 (intermittent air invasions were a taking). Although Professor Tribe criticizes this group of cases as the Court's "fetish," it may reflect the Court's comfort in treating property as a "thing," TRIBE, supra note 23, at 47, see Frank Michelman, Takings, 1987, supra note 24, at 1628 ("[T]hese may be regarded as judicial devices for putting some kind of stop to the denaturalization and disintegration of property. . . . [and although] logically vulnerable, can still make sense ideologically as tokens of the limitation of government by law."); JENNIFER NEDELSKY, PRIVATE PROPERTY AND THE LIMITS OF AMERICAN CONSTITUTIONALISM 234-239 (1991). Return to text.

[187] See Hodel, 481 U.S. at 704. Return to text.

[188] See Nollan v. California Coastal Comm'n, 483 U.S. 825, 831 (1987) ("We have repeatedly held that, as to property reserved by its owner for private use, the right to exclude [others is] `one of the most essential sticks in the bundle of rights that are commonly characterized as property'."); Dolan v. City of Tigard, 114 S. Ct. 2309, 2316 (1994) ("[P]ublic access would deprive petitioner of the right to exclude others, `one of the most essential sticks in the bundle of rights that are commonly characterized as property'."). Return to text.

[189] In Lucas, Justice Scalia states that "the owner's reasonable expectations [are] shaped by the state's law of property—i.e., whether and to what degree the State's law has accorded legal recognition and protection to the particular interest in land . . .." 112 S.Ct at 2894. Return to text.

[190] Lucas, 112 S. Ct. at 2894 n.7, 2900 ("[R]egulations that prohibit all economically beneficial use of land . . . cannot be newly legislated or decreed (without compensation) but must inhere in the title itself, in the restrictions that background principles of the State's law of property and nuisance already place upon land ownership."). Return to text.

[191] Webb's Fabulous Pharmacies, Inc. v. Beckwith, 449 U.S. 155, 160 (1980); RUCKELSHAUS V. MONSANTO, 467 U.S. 986 (1984). Return to text.

[192] Penn Central Transp. Co. v. City of New York, 438 U.S. 104, 136 (1978); Graham v. Estuary Properties, Inc., 399 So.2d 1374, 1382 (1981). Return to text.

[193] The Supreme Court has equivocally defined "expectations" in the context of existing and future regulatory schemes. Justice Scalia would rule that a property owner's reasonable expectations need not factor in the possibility that a regulatory agency will alter its regulations from time to time. Lucas, 112 S. Ct. at 2900 ("[T]he notion . . . that title is somehow held subject to the 'implied limitation' that the State may subsequently eliminate all economically valuable use is inconsistent with the historical compact recorded in the Takings Clause that has become part of our constitutional culture."). On the other hand, Justice Kennedy views existing regulatory schemes as part of the background that should inform reasonable expectations. Lucas, 112 S.Ct. at 2903 (Kennedy, J., concurring) ("The State should not be prevented from enacting new regulatory initiatives in response to changing conditions, and courts must consider all reasonable expectations whatever their source . . . . Coastal property may present such unique concerns for a fragile land system that the State can go further in regulating its development and use than the common law of nuisance might otherwise permit."). Return to text.

[194] Mahon v. Pennsylvania Coal Co., 260 U.S. 292, 414 (1922) (distinguishing regulations where there was "reciprocity of advantage"); Penn Central, 438 U.S. at 135 (noting that historic preservation regulations benefit the owner of the train terminal). Return to text.

[195] In Ruckelhuas, 467 U.S. at 999, the Court held that Monsanto did not have a reasonable expectation that the EPA would not disclose trade secrets, although the applicable statute did not require the agency to refrain from such disclosures. Return to text.

[196] Generally, courts will impute to the petitioner the knowledge that a reasonably diligent property owner would have regarding existing land use regulations. See Namon v. Dept. of Envtl. Reg., 558 So. 2d 504 (Fla. 3d DCA 1990) (appellants who learned that wetlands regulations would bar construction on the property were attributed with constructive knowledge of the regulation). Some courts have been willing to apply differing standards depending on the type of regulation. See Vatalaro v. Dept. of Envtl. Reg., 601 So. 2d 1223, 1229 (Fla. 5th DCA 1992) (court found that the petitioner did not have constructive knowledge of wetland regulations but had constructive knowledge of zoning regulations). Return to text.

[197] See Kirby Forest Indus. v. United States, 467 U.S. 1, 14 (1984). Return to text.

[198] See supra note 97-98 and accompanying text. Return to text.

[199] E.g., FLORIDA ROCK INDUS. INC. V. UNITED STATES, 18 F.3d 1560 (Fed. Cir. 1994) (case remanded for fifth time). Return to text.

[200] See 1994 PROPERTY RIGHTS REPORT, supra note 28, at 57. As Professor Rose-Ackerman noted, inconsistent results contribute to a lack of confidence that courts are making just decisions. See Rose-Ackerman, supra note 24. Return to text.

[201] See Reahard v. Lee County, 968 F.2d 1131 (11th Cir. 1992), cert. denied, 115 S. Ct. 1693 (1995); EPSTEIN, TAKINGS, supra note 26, at 116 ("The asserted incoherence of legal doctrine becomes the entering wedge to allow, encourage and indeed justify judges to reach whatever result they prefer on any given state of affairs."); see generally RONALD M. DWORKIN, TAKING RIGHTS SERIOUSLY (1977). Return to text.

[202] See THE FEDERALIST NO. 10, supra note 24, at 83-84. Return to text.

[203] See ROBERT COOTER & THOMAS ULEN, LAW AND ECONOMICS (1988); Rose-Ackerman, supra note 24; WILLIAM A. FISCHEL, REGULATORY TAKINGS (1995). Return to text.

[204] EPSTEIN, TAKINGS, supra note 26. Return to text.

[205] Rose-Ackerman, supra note 24. Return to text.

[206] Rose, supra note 130, at 596-97. Return to text.

[207] Joseph L. Sax, Takings, Private Property and Public Rights, 81 YALE L.J. 149 (1971); NEDELSKY, supra note 186, at 239-40. Return to text.

[208] Perhaps the single most important factor in explaining the shift in takings analysis from Penn Central to Lucas is the Court's differing view of property rights. Justice Brennan's view of property is clearly a view based on a series of entitlements that the community is free to add or take away. See Penn Central, 438 U.S. at 104 (reciprocity of advantage); Nollan, 483 S.Ct. at 842 (1987) (Brennan, J., dissenting) (disputing private landowners' expectations to beach access). Justice Scalia's views are more "thing" based, relying on "traditional" state law concepts of what is property. See Lucas, 112 S.Ct. 2894 n.7 (property owner's expectations determined by state property law); Nollan, 483 U.S. at 831 (right to exclude others is an essential stick in the bundle of property rights).

This flexible view of property has been condemned by some legal scholars, see Epstein, Property, supra note 116, but others view this flexibility as a function of our common law system responding to a changing environment:

"Property" is the product of 800 years of judicial manipulation. "Property" is, literally, what the courts have made it. The concept of property is part of the common law . . . . Our system contemplates that the ingredients [in the old bottle labeled "property"] will change to, among other things, accommodate the needs of a changing society. All we require of our judges is that they proceed in a rational manner, retaining enough of the existing ingredients to give stability . . . and adding enough new ingredients to meet the needs of society.
Stoebuck, supra note 136, at 1072-73. Return to text.

[209] Some legal scholars have viewed indeterminate outcomes under takings law not as a negative, but a necessary part of takings law. See Gerald Frug, Property and Power: Hartog on the Legal History of New York City, 3 AM. B. FOUND. RES. J. 673-91 (1976) (stating that judges should recognize that takings law does not reflect a particular methodological or conceptual approach, but instead requires a judge to experiment and exercise imaginative solutions); Jeremy Paul, The Hidden Structure of Takings Law, 64 S. CAL. L. REV. 1393, 1542-48 (1991) ("[Can] the riddles posed by our allegiance to conflicting views of property . . . be escaped at all. The most obvious improvement would involve coming to terms with the absence of a 'set formula' for takings decisions so that our current state of affairs need no longer pejoratively be judged `ad hoc'.") Return to text.

[210] H.L.A. HART, THE CONCEPT OF LAW 141 (1961). Return to text.

[211] J.C. GRAY, THE NATURE AND SOURCES OF LAW 276 (1902). Return to text.

[212] See supra notes 72-83 and accompanying text. Return to text.

[213] David Gluckman, a longtime environmental lobbyist, offered this assessment of the 1995 legislative session: "I had no expectations and they've been met. We've generally had a fairly miserable session." Elizabeth Wilson, Environmentalists Gloomy After a Session of Setbacks, ST. PETE. TIMES, May 11, 1995, at B5. Return to text.

[214] The supporters of "property rights" also often oppose growth management laws. For example, Rep. Ken Pruitt, a co-sponsor of the Property Rights Act, is also a leading opponent of growth management laws. See supra note 18. Return to text.

[215] The 1994 Property Rights report credits Robert M. Rhodes, a participant in the Governor's Task Force with the "modest" suggestion that the 1994 Task Force consider a program, outside of takings law, whereby property owner could obtain relief if government regulations "inordinately burdened" her land use. See 1994 PROPERTY RIGHTS REPORT, supra note 28, at 70. The 1975 PROPERTY RIGHTS REPORT contained the same recommendation. See 1975 PROPERTY RIGHTS REPORT, supra note 3, at 12. Return to text.

[216] See supra notes 6-7. Return to text.

[217] Powell et al., supra note 6, at 296-313. Return to text.

[218] See supra note 40. Return to text.

[219] See supra note 215. Return to text.

[220] E.g., Fla. SB 1326 (1995) (mandates the numerical proportion at which denial of economically viable use becomes a taking); FLA. S. JOUR. 218 (Reg. Sess. 1995) (amends the state constitutional takings provision). Return to text.

[221] See supra notes 34-38 and accompanying text. Return to text.

[222] See supra note 36 and infra notes 285-86 and accompanying text.

The Property Rights Act also addresses indirectly the problems of multilayered and highly politicized governmental decisionmaking discussed in part III. See notes 113-29 and accompanying text. The Act seeks to help the property owner cut through multiple layers of government by permitting the property owner to file simultaneously a claim to initiate negotiation or the special master procedure with all the land use entities that have some authority over the disputed use of the property. See FLA. STAT. §§ 70.001(4)(a), 2(3) (1995). Moreover, the Act provides an incentive for each land use entity to notify and involve in the dispute resolution other state land use entities with potential jurisdiction. Id. § 70.001(4)(a). If compensation is due the property owner, the state land use entity's responsibility will be reduced to the extent the circuit court finds that other participating land use entities are responsible for the "inordinate burden." Id. § 70.001(6)(a). The Act could have addressed this issue more directly by creating a one-stop permitting procedure.

It is not clear whether the drafters ever considered how the Property Rights Act would impact the well-established publicity and notice procedural safeguards in local land use decisionmaking. The Act requires that the land use entity notify the contiguous neighbors and all parties involved in prior administrative actions that an inordinate burden claim has been made, see id. § 70.001(4)(b), or that the special master procedure has been invoked, see id. § 70.51(4). The Act does not require notice to the public at large. Moreover, the Act is silent as to whether the negotiation or special master process is open to the public. The Act appears to regard the claim of the property owner, not primarily as a land use issue requiring community input, but rather as an issue of compensation affecting the individual.

Additionally, the issue of how the Property Rights Act interacts with the Florida Administrative Procedure Act, which requires notice and publicity of administrative actions, is likely to be litigated. See FLA. STAT. §§ 120.53-542, .55 (1995). While the Florida Administrative Procedures Act does not apply to most local government land use decisions, see Snyder, 595 So. 2d at 65, it does apply to decisions made by state agencies, including wetlands permitting. Return to text.

[223] Id. at § 70.001(2); see infra notes 287-93 and accompanying text. Return to text.

[224] See supra notes 133-79 and accompanying text. Return to text.

[225] See infra notes 226-34 and accompanying text. Return to text.

[226] See FLA. STAT. § 70.001(9) (1995). Return to text.

[227] See supra note 137 and accompanying text. Return to text.

[228] See supra notes 228-34 and accompanying text. Return to text.

[229] The definition of "existing use" includes reasonably foreseeable non-speculative uses, see FLA. STAT. § 70.001(2) (1995), and "actual present use or activity." Id. § 70.001(3)(e). These definitions are similar to the concept of "economically viable use" in takings jurisprudence. See supra notes 167-79 and accompanying text. Return to text.

[230] See FLA. STAT. § 70.001(3)(e) (1995). "Inordinate burden" can be found if governmental regulation permanently impairs a property owner's reasonable investment backed expectations. See id. The Act does not define this term. The only area of the law where this concept is applied is regulatory takings law. See supra notes 180-97 and accompanying text. Return to text.

[231] The Property Rights Act inordinate burden determination and the Penn Central test are similar. The first step under the Act, which directs the court to consider whether there is an existing use, corresponds to the second prong of the Penn Central test, the economically viable use prong. See supra notes 167-79 and accompanying text. The second step of the Act, the inordinate burden determination requires consideration of one of the following: 1) reasonable investment-backed expectations, a concept which corresponds to the third prong of the Penn Central test, see supra notes 180-184 and accompanying text; or 2) whether the property owner's remaining use is reasonable. The statute defines reasonable in terms of the Armstrong fairness test—fairness to the individual, given the benefits to the community as a whole. See supra note 137. Return to text.

[232] The Property Rights Act provides that the law of nuisance and noxious use should be read into what a property owner should reasonably expect to be her use of property. Cf. FLA. STAT. § 70.001(3)(e) (1995) (carving out an inordinate burden exception for "remediation of a public nuisance at common law or a noxious use of private property"). Compare with Lucas, 112 S. Ct. at 2900 (an exception to denial of economically viable use lies if state nuisance or tort law permitted a total deprivation). Return to text.

[233] Fla. S. Comm. on Comm'y Aff., tape recording of proceedings (April 24, 1995) (on file with comm. secretary) (consideration of Fla. SB 2912 (1995)) [hereinafter Fla. S. Comm. on Comm'y Aff. tape]. In response to a question concerning how the courts would interpret terms similar to terms used in the Property Rights Act, then DCA Secretary Linda Loomis Shelly responded:

We trust the circuit courts of Florida, when dealing with the facts presented to them by the property owners, [having been] told by the Legislature that it doesn't have to be a takings to be an inordinate burden, will find that new regulations that impose restrictions on property owners which are not fair, considering how the property owner is impacted . . . . [are] an inordinate burden; one that should have been [born] by the taxpayers or public-at-large . . . . [W]e don't feel that an arbitrary number, 10%, 25%, 40%, no matter what the number is, [is appropriate.] [T]hat just throws it into an issue of appraiser['s] [opinions] . . . . We think the circuit courts are well-equipped to make these decisions. They are often called upon to interpret the common law. What would a reasonable person do under similar circumstance? This is the type of [decision] that a circuit court can make.
Id. Return to text.

[234] Cf. FLA. STAT. § 70.001(2) (1995) ("The Legislature recognizes that some laws, regulations, and ordinances of the state and political entities in the state, as applied, may inordinately burden, restrict, or limit private property rights without amounting to a taking under the State Constitution or the United States Constitution."). Return to text.

[235] See supra notes 58-83 and accompanying text. Return to text.

[236] See supra notes 73-83 and accompanying text. Return to text.

[237] See infra notes 279-84, 334-45 and accompanying text. Return to text.

[238] See infra notes 285-86, 295-98 and accompanying text. Return to text.

[239] See supra note 5. Return to text.

[240] Note, however, that the definition of "existing use" was amended by way of a technical amendment, in the waning hours of the Legislative session, after the Legislature's nearly unanimous approval of the bill. The definition was expanded to add the second sentence of section 1(3)(b), which now recognizes non-speculative, reasonably foreseeable use as a compensable "existing use." FLA. STAT. §§ 70.001(2), (3)(b) (1995). It is not clear whether all members of the ad hoc group were aware of this last minute amendment (called by some a "midnight amendment"), or that the majority of legislators were aware of the importance of the "technical" amendment. Compare version passed by voice vote in the House of Representatives with final version, FLA. H.R. JOUR. 1050 (Reg. Sess. May 2, 1995); see also infra note 291. Return to text.

[241] The proposal, contained in the 1994 legislation and revisited in HB 1381, was that any government regulation that resulted in a diminution of economically viable use by 25% would be deemed a taking. Fla. HB 1381 (1995). Return to text.

[242] Property can be viewed as a series of entitlements protected by legal rules. Society makes choices as to which group to grant legal entitlements, based on policy choices such as efficiency, fairness, or income redistribution. See Calabresi & Melamed, supra note 128, at 1089-1990. The enactment of the Property Rights Act represents a "windfall" in favor of property owners because, under the Act, property owners are now entitled to claim compensation for regulatory actions that do not rise to the level of a taking. See supra note 27. Return to text.

[243] There is a class conflict character to the property rights movement. See supra notes 24-28 and accompanying text; see also Medema, supra note 181, at 48 ("The choice of a particular rule serves several functions, the most important of which are the resolution of the problem of order, the obfuscation of loss, legitimation, and psychic balm. In the face of radical indeterminacy, the law establishes order, or social control."); Warren J. Samuels & Nicholas Mercuro, The Role of the Compensation Principle in Society, in LAW AND ECONOMICS: AN INSTITUTIONAL PERSPECTIVE, 210-47 (Warren J. Samuels & Alan A. Schmidt eds., 1981). At some level, those whose wealth is concentrated in real property are resentful of land use laws that inhibit their ability to exploit the commodity value of their land. They feel that growth management and environmental laws benefit primarily those whose wealth is not concentrated in land, but concentrated mainly in intangibles, such as stocks or intellectual property (a law degree for example). Such "elites" should pay for the benefits that they derive from growth management and environmental laws. Accord Harris, Interview One, supra note 5. This anti-elite sentiment is also a basic tenet of populist ideology. See supra note 59; compare James V. DeLong, It's My Land Isn't It?, N. Y. TIMES, March 15, 1995, at A-10;

Yet it is easy for many proponents of regulation to [oppose pro-property rights legislation]. After all, real estate means little to them. Their estate lies in their professional degrees, connections or civil service job protection—possessions that are shielded from appropriation. They don't understand the fear and anger of people whose economic well-being and very identity is bound up with their land
Id.; with Dan Gordon, Want a Toxic Dump Next Door? N. Y. TIMES, March 15, 1995, at A-10.

The advocates of these laws seem to have ignored the cliche that the factors that most affect home values are location, location and location. An incinerator built close by or polluted water will immediately reduce home values in a neighborhood. Coastal protection and wetland laws protect property values by keeping communities attractive and by buffering floods and ocean storms. A band of wetlands along the coast invariably increases the value of homes behind it. So under the new anti-regulation agenda, homeowners' property values are threatened. Also, the sheer cost of paying property owners for their claims and the specter of continual litigation would dramatically undermine our environmental and zoning laws.

Id. Return to text.

[244] See supra notes 202-209 and accompanying text. Return to text.

[245] See supra note 26. Return to text.

[246] JEREMY BENTHAM, THE THEORY OF LEGISLATION, 92, 90 (1975). Return to text.

[247] Id. Return to text.

[248] Id, see, e.g., Calabresi & Melamed, supra note 128, at 1096 (justifying eminent domain power as a method of minimizing transaction costs and avoiding the holdout problem); Ellickson, Alternatives to Zoning, supra note 129, at 723-38 (rejecting zoning regulations as generally inefficient). Return to text.

[249] This is the public investment issue raised by law and economics scholars such as Susan Rose-Ackermann, Robert Cooter and Thomas Ulen. Law and economics scholars have been particularly concerned as to how the unpredictability of the exercise of the takings power can affect investment decisions of individual property owners. See Rose-Ackerman, supra note 24; COOTER & ULEN, supra note 203; Thomas Ulen, The Public Use of Private Property: A Dual Constraint Theory of Efficient Governmental Takings, in LAW AND ECONOMICS PERSPECTIVES ON THE TAKINGS ISSUE, supra note 24, at 163. Return to text.

[250] Michelman, supra note 23, at 1224. Return to text.

[251] See generally, Sax, supra note 207 (property is interconnected and mutually dependent); Robert Reich, The New Property, 73 YALE L. J. 733, 771 (1964) (property rights create areas of independence and self-reliance which the majority democratic process should protect); Margaret J. Radin, Property and Personhood, 34 STAN. L. REV. 957 (1982) (courts should protect the area of "personhood" from incursion by the majority and other property owners); Frank I. Michelman, Property As a Constitutional Right, 38 WASH. & LEE L. REV. 1097 (1981) (property rights are political rights affecting democratic participation); Rose, supra note 130, at 593-99 (property rights include civic responsibilities which may require property owners to sacrifice and bear losses); Robin P. Malloy, A Classical Liberal Critique of Takings Law: A Struggle Between Individualist and Communitarian Norms, in LAW AND ECONOMICS PERSPECTIVES ON THE TAKINGS ISSUE, supra note 24, at 199-215. Return to text.

[252] See Sax, supra note 207. Return to text.

[253] Not all scholars rely on the political process as a justification of the communitarian view of property, but instead rely on their original insight as the basis for justifying actions by the majority. See, e.g., Radin, supra note 251 (relying on the moral importance of personhood); Reich, supra note 251 (positing that property is necessary for individuals to remain independent and to preserve dignity); Sax, supra note 207 (viewing property as an interdependent network); Rose, supra note 130 (viewing property as a civic responsibility). Return to text.

[254] See supra note 163. Return to text.

[255] EPSTEIN, TAKINGS, supra note 26, at 65, 177, 257-59, 297-99. Return to text.

[256] Id. Return to text.

[257] Id. Return to text.

[258] The utilitarian justification for zoning is based on preventing "harmful externalities [which would] decrease the utility and thus the values of neighboring property." Ellickson, Alternatives to Zoning, supra note 129, at 687-90. However, the evidence as to whether zoning preserves property value is mixed. See generally, WILLIAM A. FISCHEL, DO GROWTH CONTROLS MATTER? A REVIEW OF EMPIRICAL EVIDENCE ON THE EFFECTIVENESS AND EFFICIENCY OF LOCAL GOVERNMENT LAND USE REGULATION (1990) (empirical evidence was inconclusive); Macmillen & McDonald, Could Zoning Have Increased Land Values in Chicago?, 33 J. URB. ECON. 167, 168 (1993) (study of Chicago property values showed no increase in property values following zoning); Patrick Beaton, The Impact of Regional Land-Use Controls on Property Values: The Case of the New Jersey Pinelands, LAND ECON. 172 (May 1, 1991) (study of growth management controls in New Jersey Pinelands area showed increase in value of developed residential property in the growth-controlled areas). Professors Epstein and Ellickson have argued that the tort law of nuisance is all that is needed in land use to mediate disputes between conflicting land uses. See EPSTEIN, TAKINGS, supra note 26, at 224-62; RICHARD A. EPSTEIN, SIMPLE RULES FOR A COMPLEX WORLD (1995) [hereinafter SIMPLE RULES]. Return to text.

[259] See supra note 181 and accompanying text. Return to text.

[260] The only exception under the classical view, reflected in the Property Rights Act, is where a land development regulation prohibits a nuisance or a noxious use. See FLA. STAT. § 70.001(3)(e) (1995). Return to text.

[261] Pennsylvania Coal Co. v. Mahon, 260 U.S. 393, 415 (1922). Return to text.

[262] Consider how complex a task it is for local governments to keep property values on local tax rolls current. The task is so administratively onerous that property tax assessments consistently lag behind market values, even though it is clearly to the advantage of local governments to keep property values current since this would increase tax revenues. Return to text.

[263] In the Senate debate, the sponsor of the Act, Sen. Mackey unequivocally states in his closing argument that the Act is not intended to have any drastic effect on growth management and environmental laws. Return to text.

[264] See supra notes 72-83 and accompanying text. Return to text.

[265] See supra note 28 and accompanying text. Return to text.

[266] See supra note 6. The Legislature did not allocate any funding to land use entities when it enacted the Act, even though the potential monetary effect of the Act is in the billions of dollars. See supra note 28 and accompanying text. The Act provides that its application is prospective, applying only to new regulations or amendments. FLA. STAT. § 70.001(12) (1995). This provision could put off indefinitely the application of the Property Rights Act if it is interpreted to mean that any land use regulation issued under the growth management laws is an application of an existing law, and not a new land use regulation. However, this is an extreme interpretation of this provision and one that would be contrary to the interpretation of the Act as a signal to regulatory agencies to mend their organizational culture. Nonetheless, at some time the wealth transfer effects due to the compensation provision in the Property Rights Act will have to be confronted. Concerns regarding funding surfaced in the subcommittee meetings of the Senate Judiciary Committee and Committee on Community Affairs, when the Florida Association of Counties and Florida League of Cities opposed the Act. See Fla. S. Judiciary Comm., tape recording of proceedings (April 19, 1995) (on file with comm. secretary) [hereinafter Fla. S. Judiciary Comm. tape]; Fla. S. Comm'y Aff. Comm. tape, supra note 233. Return to text.

[267] These officials would most likely be members of the local planning board and the local water management district. For purposes of discussion of the hypothetical, I will assume that the only officials involved are the members of the Mithica planning commission. Return to text.

[268] Growth would have to exhaust numerous local administrative procedures to meet ripeness requirements necessary to file a takings claim. See supra notes 97-112 and accompanying text. Therefore, Growth, like any other rational property owner, would probably opt first for the procedures offered under the Property Rights Act. Under the Act, Growth can, within six months, and at relatively low cost, secure a "final decision" from the land use entity that, under a worst case scenario, would render Growth's compensation claim "ripe" under the Act or, at best, secure a favorable remedy. Return to text.

[269] It is the property owner's responsibility to file a claim with the appropriate government agencies, although a land use entity can also notify another entity whose active participation may be required. FLA. STAT. § 70.001(4)(a) (1995). There is actually an incentive for agencies to involve other land use entities that may have responsibility for impairing the existing use of the property, since the land use entity's potential financial liability to the property owner will be reduced to the extent a circuit court finds other land use entities are responsible for the property owner's inordinate burden. See Id. § 70.001(6)(a). Return to text.

[270] Under the Act, only persons who hold legal title may file a claim. Id. § 70.001(3)(f). Return to text.

[271] The Act defines "inordinate burden" as:

an action of one or more governmental entities [that] directly restrict[s] or limit[s] the use of real property such that the property owner is permanently unable to attain the reasonable, investment-backed expectation for the existing use of the real property or a vested right to a specific use of the real property with respect to the real property as a whole, or that the property owner is left with existing or vested uses that are unreasonable such that the property owner bears permanently a disproportionate share of a burden imposed for the good of the public, which in fairness should be borne by the public at large. The terms "inordinately burden" or "inordinately burdened" do not include temporary impacts to real property occasioned by governmental abatement, prohibition, prevention, or remediation of a public nuisance at common law or a noxious use of private property . . . .
Id. § 70.001(3)(e). Return to text.

[272] Id. Return to text.

[273] The Act defines "existing use" as:

an actual, present use or activity on the real property . . . or such reasonably foreseeable, nonspeculative land uses which are suitable for the subject real property and compatible with adjacent land uses and which have created an existing fair market value in the property greater than the fair market value of the actual, present use or activity on the real property.
Id. § 70.001(3)(b). Return to text.

[274] An existing use is unreasonable when "the property owner bears permanently a disproportionate share of a burden imposed for the good of the public, which in fairness should be borne by the public at large." Id. § 70.001(3)(e). Return to text.

[275] Id. Return to text.

[276] Business damages are excluded from the compensation calculation. Id. § 70.001(6)(b). Return to text.

[277] See id. § 70.001(4)(a). The Act contains no requirement for professional certification of the appraiser, a precaution normally observed in commercial real estate transactions. Return to text.

[278] See id. Return to text.

[279] Id. § 70.00(4)(c). The Act specifies what a government agency must do in extending a settlement offer as follows:

During the 180-day-notice period, unless extended by agreement of the parties, the governmental entity shall make a written settlement offer to effectuate:
1. An adjustment of land development or permit standards or other provisions controlling the development or use of land.
2. Increases or modifications in the density, intensity, or use of areas of development.
3. The transfer of developmental rights.
4. Land swaps or exchanges.
5. Mitigation, including payments in lieu of onsite mitigation.
6. Location on the least sensitive portion of the property.
7. Conditioning the amount of development or use permitted.
8. A requirement that issues be addressed on a more comprehensive basis than a single proposed use or development.
9. Issuance of the development order, a variance, special exception, or other extraordinary relief.
10.Purchase of the real property, or an interest therein, by an appropriate governmental entity.
11.No changes to the action of the governmental entity.
Id. This description does not specify whether the settlement offer is the result of a bargaining process between the property owner and the government agency or a single offer. Nonetheless, a bargaining process is contemplated by the Act:

Any proposed settlement offer or any proposed ripeness decision, except for the final written settlement offer or the final written ripeness decision, and any negotiations or rejections in regard to the formulation either of the settlement offer or the ripeness decision, are inadmissible in the subsequent proceeding established by this section except for the purposes of the determination pursuant to this paragraph.
Id. § 70.001(6)(c)3 (emphasis added). A bargaining process may be advantageous to both parties since it would facilitate the exchange of information about the property and the offers they would have been willing to accept. See infra note 337. Return to text.

[280] Whether this process is a review or reconsideration is not expressly provided in the Act. However, this 180-day settlement offer period can be viewed as a "cooling-off" period during which local governments can reconsider their decisions, removed from the political pressures generated at the moment the decision was initially made. Return to text.

[281] A government agency must obey its enabling act and existing laws and regulations. In addition, during this bargaining process, land use entities should be aware of the common law doctrine of contract zoning, which prohibits a land use entity from contracting away their police power. The policy behind this doctrine is a concern for arbitrariness and subversion of local processes in favor of influential parties able to exact concessions from local governments. The police power can be exercised only in the interest of the whole community. See Hartnett v. Austin, 93 So. 2d 86 (Fla. 1956); Collard v. Incorporated Village of Flower Hill, 421 N.E.2d 818, 821-22 (N.Y. 1981) ("Because no municipal government has the power to make contracts that control or limit it in the exercise of its legislative powers and duties, restrictive agreements made by a municipality in conjunction with a rezoning are sometimes said to violate public policy."); Cederberg v. City of Rockford, 291 N.E.2d 249, 251 (2d Dist. Ill. 1972) ("When zoning is conditioned upon collateral agreements or other incentives supplied by a property owner, the zoning officials are placed 'in the questionable position of bartering their legislative discretion for emoluments that had no bearing on the merits of the requested amendment.' "); see generally Judith W. Wegner, Moving Toward the Bargaining Table: Contract Zoning, Development Agreements, and the Theoretical Foundations of Government Land Use Deals, 65 N.C. L. REV. 957, 983-84 (1987) (contract zoning and spot zoning are in essence a substantive due process and procedural due process judicial review). Return to text.

[282] The final "settlement offer" is to be taken into consideration by the court if negotiations fail and the property owner proceeds to seek compensation for "inordinate burden" compensation under the Act. FLA. STAT. § 70.001(6)(a) (1995) ("The circuit court shall determine . . . considering the settlement offer . . . [whether] the governmental entity . . . inordinately burdened the real property.") The "settlement offer" is also considered in the award of attorney's fees to the prevailing party in subsequent litigation under the Act. The Act provides that "the property owner is entitled to recover reasonable costs and attorney [sic] fees . . . if the property owner prevails in the action and the court determines that the settlement offer . . . did not constitute a bona fide offer to the property owner which reasonably would have resolved the claim. . . ." Id. § 70.001(6)(c)1. Similarly, the land use entity may be awarded attorney's fees and costs if "the property owner did not accept a bona fide settlement offer. . . ." Id. § 70.001 (6)(c)2.

These types of penalties would encourage the land use entity to make a settlement offer that it could defend as reasonable in court. It will not necessarily be the entity's "best offer," since the agency will anticipate that the court, and other parties, will use the agency's "settlement offer" as a starting point for settlement negotiations in any ensuing litigation proceedings. Return to text.

[283] There is no funding for local entities under the Act, although funding was recommended by the 1994 Property Rights Report and the 1975 Property Rights Report. See 1994 PROPERTY RIGHTS REPORT, supra note 28, at 91-92; 1975 PROPERTY RIGHTS REPORT, supra note 3, at 8. The only funds available for purchase of environmentally sensitive land would be under one of Florida's land acquisition programs, such as the Conservation and Recreation Lands (CARL) program which gives local governments grants to buy land in their own communities. FLA. STAT. § 259.032 (1995). Return to text.

[284] This is an enumerated settlement option. See FLA. STAT. § 70.001(4)(c)11 (1995) ("No changes to the action of the governmental entity."). Return to text.

[285] See id. § 70.001(5)(a) ("[t]he governmental entit[y] . . . issue[s] a ripeness decision identifying the allowable uses to which the subject property may be put.") (emphasis added). Return to text.

[286] See id. § 70.001(5)(a).

The failure of the governmental entity to issue a written ripeness decision during the 180-day-notice period shall be deemed to ripen the prior action of the governmental entity, and shall operate as a ripeness decision that has been rejected by the property owner. The ripeness decision, as a matter of law, constitutes the last prerequisite to judicial review, and the matter shall be deemed ripe or final for the purposes of the judicial proceeding created by this section, notwithstanding the availability of other administrative remedies.
Id. (emphasis added). "If the property owner rejects the settlement offer and the ripeness decision of the governmental entity or entities, the property owner may file a claim for compensation in the circuit court." Id. § 70.001(5)(b). Thus, the property owner need not apply for variances or exceptions, propose a less intensive use, or await a final decision, as required under current takings common law. See supra notes 97-105 and accompanying text. Return to text.

[287] Id. § 70.001(5)(b). Return to text.

[288] The Act requires that the landowner reject the land use entity's settlement offer in order to file suit. See id. The Act does not require that the property owner's rejection of the settlement offer be reasonable. Id. If the county had made a settlement offer that was more advantageous to the land owner than the original decision, then the land owner could file a claim based on the land use entity's original decision. However, the court would be directed to consider the subsequent settlement offer in reaching its decision. Id. Return to text.

[289] See FLA. STAT. § 70.001(3)(e), (6)(b) (1995). It is not clear whether the property owner would also have to show that the property owner's desired use is not subject to a common law nuisance or noxious use exception, or if the exceptions are defenses that the governmental entity would have to prove. See id. § 70.001(3)(e) ("The terms `inordinate burden' or `inordinately burdened' do not include . . . impacts to real property occasioned by governmental abatement, prohibition, prevention, or remediation of a public nuisance at common law or a noxious use of private property . . . ."). Return to text.

[290] See id. § 70.001(6)(a). The circuit court shall determine whether an existing use of the real property or a vested right to a specific use of the real property existed and, if so, whether, considering the settlement offer and ripeness decision, the governmental entity or entities have inordinately burdened the real property. Id. Return to text.

[291] For the definition of "existing use," see supra note 273. Clause (ii) of the existing use definition was added in the last minute "technical amendment." See supra note 240. This clause has great potential for abuse. Consider that developers purchase land for its potential use, not for its actual use, and at the urban fringes development of any undeveloped parcel will be "suitable" for the property and "compatible" with neighboring properties. Hence this clause will increase pressure for urban sprawl, which is against the policies of Florida growth management laws. See FLA. STAT. § 163.3180 (1995).

Moreover, the line between "speculative" and "more speculative" potential uses will be difficult for the courts to draw. See, e.g., Florida Rock Indus. Inc. v. United States, 18 F.3d 1560, 1560 (Fed. Circ. 1994). Return to text.

[292] For the definition of "inordinate burden," see supra note 271. Return to text.

[293] The Act provides that "[t]he award of compensation shall be determined by calculating the difference in the fair market value of the real property, as it existed at the time of the governmental action at issue, as though the owner had the ability to attain the reasonable investment-backed expectation or was not left with uses that are unreasonable, whichever the case may be, and the fair market value of the real property, as it existed at the time of the governmental action at issue, as inordinately burdened, considering the settlement offer together with the ripeness decision, of the governmental entity or entities." FLA. STAT. § 70.001(6)(b) (1995). The jury's compensation findings will overlap with the court's "inordinate burden" findings. The jury will have to determine 1) the existing use, and 2) whether the existing use is reasonable, or the governmental action interfered with the property owner's reasonable, investment-backed expectations. Thus, this two-tier fact-finding process is inefficient. Return to text.

[294] See supra 219-66 and accompanying text. Return to text.

[295] See supra notes 221-22 and accompanying text. Return to text.

[296] If the study Mithica had commissioned had been inconclusive and required further tests, Mithica should place a moratorium on further development, and not permanently downzone to a conservation use. The Act applies only to a "permanent" denial of an existing or reasonable use, see FLA. STAT. § 70.001(3)(e) (1995), so under a moratorium, Growth would not be able to bring a complaint under the Act, unless it could show that the moratorium was a de facto permanent change in zoning classification, or that it was unreasonable. See First English Evangelical Church v. Los Angeles, 258 Cal. Rptr. 893, 906 (1989), remanded by, 482 U.S. 304 (1987). Return to text.

[297] The Act only provides that the land use entity must issue a ripeness decision within 180 days. See FLA. STAT. § 70.001(5)(a) (1995). Return to text.

[298] This would be the cautious approach. Mithica's failure to issue a ripeness decision could affect the court's inordinate burden determination if the claim proceeds to litigation. Additionally, if the property owner prevails the court could award the property owner court costs and attorney's fees. See supra note 282. Return to text.

[299] When conducting the inordinate burden analysis the court is not limited to the original governmental action that initiated the property owner's compensation claim. The court should consider both the land use entity's original action and its response within the 180-day period following the filing of petitioner's claim. The Act, however, seems to provide that the compensation award shall be based only on the property owner's original claim. See supra note 280. Return to text.

[300] Section 70.001(2) of the Act provides that "when a specific action ... has inordinately burdened an existing use of property ... the property owner is ... entitled to relief." FLA. STAT. § 70.001(2) (1995). This phrasing indicates that, for purposes of determining inordinate burden, the relevant timeline for the determination of existing use is the existing use prior to the enactment of the regulatory action being challenged. Return to text.

[301] See FLA. STAT. § 70.001(3)(b) (1995). Return to text.

[302] FLA. STAT. § 70.001(3)(b) (1995). Return to text.

[303] See Graham v. Estuary Properties, Inc., 399 So.2d 1374, 1376 (Fla. 1981); Lee County v. Sunbelt Equities, II, 619 So. 2d 996, 1006 (2d DCA 1993) (citing Penn Central Transp. Corp. v. City of New York, 438 U.S. 104 (1978)). Return to text.

[304] 399 So. 2d at 1382 ("[a]n owner of land has no absolute and unlimited right to change the natural character of his land . . . .") (citations omitted) see also Smith v. City of Clearwater, 383 So.2d 681 (Fla. 2d DCA 1980). Return to text.

[305] Lucas v. South Carolina Coastal Council, 112 S. Ct. 2886, 2903 (1992) (Kennedy, J., concurring) ("The State should not be prevented from enacting new regulatory initiatives in response to changing conditions, and the courts must consider all reasonable expectations whatever their source."). Return to text.

[306] See Cason v. Florida Power Co., 76 So. 535 (Fla. 1917) ("All property is owned and used subject to the laws of the land."); Namon v. Department of Environmental Regulation, 558 So.2d 504 (3d DCA 1990) (holding that constructive knowledge of existing regulatory scheme is ascribed to the purchaser of property). But see Vatalaro v. Dept. of Envtl Reg., 601 So.2d 1223 (Fla. 5th DCA 1992) (holding that the property owner should not be ascribed with constrictive knowledge of state wetlands regulations in effect at the time she purchased the property); Valerie A. Collins, Vatalaro v. Department of Environmental Regulation: The Mysterious Takings Rule, 8 J. LAND USE & ENVTL. L. 611 (1993). Return to text.

[307] FLA. STAT. § 70.001(3)(e) (1995). Return to text.

[308] See supra notes 167-97 and accompanying text. Return to text.

[309] It is not clear under the Act who has the burden of proof to show the existence or nonexistence of a public nuisance exception. Return to text.

[310] See Orlando Sports Stadium, Inc. v. State ex rel. Powell, 262 So. 2d 881, 884 (Fla. 1972) ("nuisance" is difficult to define comprehensibly and before the fact); United States v. County Bd. of Arlington County, 487 F. Supp. 137 (N.D. Miss. 1979) ("nuisance" incapable of absolute definition). Return to text.

[311] Florida law defines a nuisance as "any place which tends to annoy the community or injure the health of the community, or become manifestly injurious to the morals or manners of the people . . . or any place where the law of the state is violated." FLA. STAT. § 823.05 (1995). See RESTATEMENT (SECOND) OF TORTS § 821B(1) ("[A] public nuisance is an unreasonable interference with a right common to the general public"); DANIEL R. MANDELKER, PLANNING AND CONTROL OF LAND DEVELOPMENT 48 (1992); William Prosser, Private Action for Public Nuisance, 52 VA. L. REV. 997, 999 (1966) ("a public nuisance is a species of catch-all low-grade criminal offense, consisting of an interference with the rights of the community at large, which may include anything from the blocking of a highway to a gaming house or indecent exposure."). Return to text.

[312] See CALLIES ET AL., supra note 154, at 265-68 (discussion of nuisance and takings law). Return to text.

[313] Cason v. Florida Power Co., 76 So. 535 (Fla. 1917); Sheip v. Amos, 130 So. 699 (Fla. 1930); Pompano Horse Club, Inc. v. State ex rel. Bryan, 111 So. 801 (Fla. 1927); Rearer v. Martin Theaters of Florida, Inc., 52 So. 2d 682 (Fla. 1951); Orlando Sports Stadium, Inc., v. State ex rel. Powell, 262 So. 2d 881 (Fla. 1972); National Container Corp. v. State ex rel. Stockton, 189 So.2d 4 (Fla. 1939). Return to text.

[314] Richard J. Grosso and David J. Russ, Takings Law in Florida: Ramifications of Lucas and Reahard, 8 J. LAND USE & ENVTL. L. 431, 463 (1993). Return to text.

[315] 189 So. 2d 4 (1939). Return to text.

[316] In finding that the State could enjoin the mill's polluting activities, the Court reasoned:

If the . . . [mill] . . . discharge[s] . . . waste and refuse matter into the River which will be highly toxic to . . . fish and aquatic life . . . upon which the fish are accustomed to feed and the result will be that the supply of fish in the river will be seriously reduced . . . and commercial [fishing] . . . will [be] seriously and permanently damaged and the facilities for pleasure will be thereby diminished, we think that it requires no citation of authority to support the assertion that the state may enjoin . . . even before the damaging condition comes into being.
Id. at 13. Return to text.

[317] This circularity did not bother Justice Scalia in Lucas where he crafted a public nuisance exception to the "no economic use" category of per se takings. Lucas v. South Carolina Coastal Council, 112 S. Ct. 2886, 2902 n.18 (1992). He clearly recognized that a similar balancing analysis would be undertaken by courts in a public nuisance analysis, but he reasoned that such balancing would be constrained by "well-established" common law doctrine. Id. By contrast, he is much more skeptical of legislatures that balance the interests of the community against private property owners. Id; see Humbach, Evolving Thresholds of Nuisance and the Takings Clause, 18 COLUM. J. ENVTL. L. 1 (1993). Return to text.

[318] Compare Pennsylvania Coal Co. v. Mahon, 260 U.S. 393, 416 (1922) (Brandeis, J. dissent) (discussing that noxious fumes could be abated without compensation because the property owner never had a right to inflict noxious fumes on his neighbors and therefore the regulation was not a taking) with Lucas, 112 S. Ct. at 2900 (Scalia, J.) (nuisance exception is based on traditional notions of state property law). Return to text.

[319] Compare application of nuisance law based on efficiency notions, Boomer v. Atlantic Cement Co. 257 N.E. 2d 870 (N.Y. 1970); EPSTEIN, TAKINGS, supra note 26, at 229-45; Calabresi, supra note 117; Ellickson, Alternatives to Zoning, supra note 129, at 722-27; Polinsky, Resolving Nuisance Disputes: The Simple Economics of Injunctive and Damage Remedies, 32 STAN. L. REV. 1075 (1980); Rabin, Nuisance Law: Rethinking Fundamental Assumptions, 63 VA. L. REV. 1299 (1977); Comment, Internalizing Externalities: Nuisance Law and Economic Efficiency, 53 N.Y.U. L. REV. 219 (1978) with application of nuisance law based on communitarian policies and Just v. Marinette County, 201 N.W. 2d 761 (Wis. 1972); Sax, supra note 207, at 150-53; Michelman, supra note 23, at Sec. VD (nuisance law forces individual property owner to give back to society what it was not entitled to take); see also Philadelphia Elec. Co. v. Hercules Inc., 762 F.2d 303 (3d Cir. 1985) ("[Recent] economic analysis proceeds on the basis that the goal of nuisance law is to achieve efficient and equitable solutions to the problems created by discordant land uses ... [however] to so extend private nuisance beyond its historical role would render it little more than an epithet."). Return to text.

[320] See Summers, supra note 149, at 876 (balancing of public versus private interests provides an inadequate protection for private property rights because the governmental interest advanced is often viewed by courts as being more important than the property rights of the individual). Return to text.

[321] Consider the following justifications for noncompensation based on fairness and efficiency policy concerns. Professor Michelman proposes a balancing test that would consider 1) demoralization costs of regulations (for example, a regulation which takes away bargained-for property rights may affect the whole community's perception of such unfair treatment), and 2) the cost of compensating the "losers", including the transaction cost for each settlement. See Michelman, supra note 23, at 1214-18. These costs should be balanced against the benefit of the regulation. The case for noncompensation is strongest if demoralization and compensation costs are low and efficiency gains are high. As stated by Professor Michelman, demoralization costs can be low when the "disappointed claimant can appreciate how such regulatory decisions might fit into a consistent practice which holds forth a lesser long-run risk to property owners similarly situated." See id. In this case, if Growth can appreciate that in the long run it will benefit from the zoning ordinance and other ordinances like it, demoralization costs would be low, and a result of noncompensation under the Mithica scenario can be justified.

Professor Ellickson differs with Professor Michelman's conclusion on demoralization costs. He sets forth a paradigm case for noncompensability that is similar to Professor Michelman's, but emphasizes to a greater extent efficiency concerns. Professor Ellickson proposes noncompensation when the following conditions are met: 1) the efficiency of the government program that caused the loss is transparently obvious, 2) the administrative cost of compensation is high, and 3) the losses suffered are small and widespread. See Ellickson, Alternatives to Zoning, supra note 129, at 699-704. Professor Ellickson maintains that in a downzoning demoralization costs are high because property owners view zoning decisions as random and subject to special influence in the zoning system. See id. at 700. Return to text.

[322] This justification focuses on an analysis of the justifiable exercise of the police power. See Oswald, supra note 168, at 138-45; Sax, supra note 23. Return to text.

[323] Cf. Oswald, supra note 168 (arguing that the Penn Central economically viable use factor and RIBEs are fraught with theoretical inconsistencies and open-ended questions; accordingly, in applying the takings test courts should focus on how regulatory agencies exercised the police power); see also Summers, supra note 149, at 882 (arguing that heightened ends-means scrutiny is justified when a limited class of individuals may be burdened by a majority which benefits form the regulation). Return to text.

[324] 272 U.S. 365 (1926). Return to text.

[325] Contract zoning, spot zoning and subdivision cases involve unarticulated substantive due process review. See, e.g., Hartnett v. Austin, 93 So. 2d 86 (Fla. 1956); Cederburg Contractors & Builders Assoc. v. City of Dunedin, 329 So.2d 314 (Fla. 1978); St John's County v. Northwest Florida Builders Ass'n, Inc., 583 So. 2d 631 (Fla. 1991); see generally Wegner supra note 281. Takings cases frequently mix substantive due process and takings analysis. See, e.g., Graham v. Estuary Properties Inc., 399 So.2d 1374, 1381 (1981) (in applying takings factors analysis the court concluded that the "regulation . . . promotes the welfare of the public, prevents a public harm, and has not been arbitrarily applied"); Joint Ventures, Inc. v. Department of Transp., 563 So. 2d 622, 626-27 (Fla. 1990) (court invalidated a statute as an unreasonable regulation that had "taken" substantially all of the beneficial use of property."); see also supra note 152. Return to text.

[326] This approach would be similar to the Dolan-Nollan test which requires 1) an "essential nexus" between a dedication requirement (the government action) and the governmental purpose, and 2) "rough proportionality" between the dedication requirement and the impacts caused by the use of the land. The first prong is an inquiry into whether government action is sufficiently related to the governmental purpose. The second prong is an inquiry into the reasonableness of the burden on the individual property owner. See generally Stoebuck, supra note 136, at 1058. Return to text.

[327] See Dolan v. City of Tigard, 114 S. Ct. 2309, 2317 (1994); Nollan v. California Coastal Comm'n, 483 U.S. 825, 837 (1987). Return to text.

[328] The purpose of a "less burdensome alternative" inquiry is to determine if the means used by the land use entity "fit" the governmental purpose. The test would not require that the land use entity choose the less burdensome means since that would in effect be usurping much of the discretion needed by land use entities in exercising the police power. Return to text.

[329] This is in essence the second prong of the Act's inordinate burden test, which focuses on burdens disproportionatly placed on individual property owners. Return to text.

[330] See Fla. S. Comm'y Aff. Comm. tape, supra note 233. Return to text.

[331] 1975 PROPERTY RIGHTS REPORT, SUPRA NOTE 3, AT 10. Return to text.

[332] This approach is another example of how the Act seeks to create reform without going outside established frameworks. For instance, the Act does not seek to abolish zoning or growth management controls, but instead seeks to reform the process by imposing market-like mechanisms. Free market analysts have argued that zoning is inefficient when compared to individualized decisionmaking among private individuals. See generally Coase, supra note 128. They also point to the high transaction costs of zoning schemes. See Ellickson, Alternatives to Zoning, supra note 129, at 719-725; WILLIAM A. FISCHEL, THE ECONOMICS OF ZONING LAWS: A PROPERTY RIGHTS APPROACH TO AMERICAN LAND USE CONTROLS 30 (1985); ROBERT H. NELSON, ZONING AND PROPERTY RIGHTS: AN ANALYSIS OF THE AMERICAN SYSTEM OF LAND USE REGULATION (1977); Jan Z. Krasnowiecki, Abolish Zoning, 31 SYRACUSE L. REV. 719 (1980). Return to text.

[333] When the land use entity is a state agency there may be an issue whether this type of settlement offer process falls within the provisions of the Florida Administrative Procedures Act (APA). For purposes of this discussion, I will assume that the Florida APA does not apply to the settlement offer process. This appears to be the assumption of the ad hoc committee that drafted the Act and of the legislators involved in the two Senate committee hearings, since no comment reveals any concerns with this potential issue. See Fla. S. Judiciary Comm. tape, supra note 258; Fla. S. Comm'y Aff. Comm. tape, supra note 233. Return to text.

[334] The opposite of decentralized decisionmaking is legal centrism, the belief that government is the chief source of rules. Supporters of decentralized decisionmaking in certain kinds of situations include Oliver E. Williamson, Credible Commitments: Using Hostages to Support Exchange, 73 AM. ECON. REV. 519 (1983), ROBERT C. ELLICKSON, ORDER WITHOUT LAW (1991), and Robert Cooter, Structural Adjudication and the New Law Merchant: A Model of Decentralized Law, 14 INT'L REV. L. & ECON. 214 (1994). Return to text.

[335] FLA. STAT. § 70.001(4)(a) (1995); see supra notes 267-282 and accompanying text. Return to text.

[336] See supra note 277 and accompanying text. Return to text.

[337] Although the Act does not mandate the format of the negotiation, the parties' ignorance as to each others' position will likely lead parties to opt for a process that enables them to obtain more information about the other's claim, such as exchanging offers. See Robert Cooter et al., Bargaining in the Shadow of the Law: A Testable Model of Strategic Behavior, 11 J. OF LEGAL STUD. 225 (1982); Daniel Fudenberg & John Tirole, Sequential Bargaining with Incomplete Information, 50 REV. ECON. STUD. 221 (1983); Lucian A. Bebchuck, Litigation and Settlement Under Imperfect Information, 15 RAND J. ECON. 404 (1984). Return to text.

[338] FLA. STAT. § 70.001(4)(d)1 (1995). Return to text.

[339] Id. § 70.001(4)(d)2. Return to text.

[340] Id. § 70.001(4)(b)9. This kind of flexibility was also recommended by the 1975 Property Rights Task Force. See 1975 PROPERTY RIGHTS REPORT, supra note 3, at 12. Return to text.

[341] FLA. STAT. § 70.001(4)(c)4, 10 (1995). Return to text.

[342] Id. § 70.001(4)(c)11. Return to text.

[343] See supra notes 221-22 and accompanying text. Return to text.

[344] FLA. STAT. § 70.001(4)(b) (1995). Return to text.

[345] Id. § 70.001(4)(d)2. Return to text.

[346] Economics is a form of analysis that is particularly powerful for analyzing legal rules. See generally COOTER & ULEN, supra note 203; RICHARD POSNER, THE ECONOMICS OF JUSTICE (1981). Economists make certain assumptions that have normative implications; for example, markets maximize efficiency and individual or aggregate utility, and that individuals behave rationally when they seek to maximize their individual welfare. See JOHN RAWLS, A THEORY OF JUSTICE 27-33 (1971). Return to text.

[347] CHARLES SCHULTZE, THE PUBLIC USE OF PRIVATE INTEREST (1977); KENNETH J. ARROW, SOCIAL CHOICE AND INDIVIDUAL VALUES (2d ed. 1963); GEORGE STIGLER, THE CITIZEN AND THE STATE (1965); Ellickson, Alternatives to Zoning, supra note 129; Epstein, Property, supra note 116; EPSTEIN, SIMPLE RULES, supra note 258; Cooter, supra note 334, at 214. Return to text.

[348] The growth management laws could be viewed as a modified form of centralized "command and control" lawmaking. Local governments are under legal obligation to develop local comprehensive plans. The Local Growth Management Act sets forth in great detail what the comprehensive plan must contain and how these elements are to be scientifically-based. FLA. STAT. § 163.3177 (1995); see generally David L. Powell, Managing Florida's Growth: The Next Generation, 21 FL. ST. U. L. REV. 223 (1993); Thomas G. Pelham, William L. Hyde & Robert P. Banks, Managing Florida's Growth: Toward an Integrated State, Regional and Local Comprehensive Planning Process, 13 FL. ST. U. L. REV. 515 (1985). Local governments must submit their plans to the Department of Community Affairs, which in turn must approve them. FLA. STAT. § 163.3184 (1995). The Local Growth Management Act requires the local comprehensive plan to be consistent with the State Comprehensive Plan and the applicable regional plan. FLA. STAT. § 186.001-.911 (1995). The Department of Community Affairs (DCA) is responsible for reviewing local comprehensive plans to ensure consistency. FLA. STAT. § 163.3177(9)(c) (1995). If the DCA believes that local comprehensive plans are not in compliance with legal requirements, the DCA is empowered to challenge the local government's comprehensive plan in administrative hearings. FLA. STAT. § 163.3184(4) (1995). The Property Rights Act amends the Local Growth Management Act to permit alternative dispute resolution to resolve intragovernmental disputes. See 1995, Fla. Laws ch. 95-181 § 4, 1651, 1664 (codified at FLA. STAT. 163.3184(10)(c) (1995)). If the DCA is not satisfied with the local comprehensive plan, the Governor and the Cabinet may direct state agencies to withhold funds for water and sewer system improvements, roads and bridges, revenue sharing, community development block grants and recreation development assistance. FLA. STAT. § 163.3184(11) (1995); see generally EPSTEIN,TAKINGS, supra note 26 (wherein he calls Washington State's growth management laws "coercive"); Cooter, supra note 334, at 214-16; Richard B. Stewart, Regulation, Innovation, and Administrative Law: A Conceptual Framework, 69 CAL. L. REV. 1259 (1981); HOWARD, supra note 78. Return to text.

[349] ADAM SMITH, AN INQUIRY INTO THE NATURE AND CAUSES OF THE WEALTH OF NATIONS (William Benton, ed., Chicago Books 1952) (1776) (discussing work of "invisible hand" of the market, which through price signals will guide self-interested individuals to do what is best for themselves and also for society as a whole); see also POSNER, supra note 346, at 51-115; COOTER & ULEN, supra note 203, at 1-14; SCHULTZE, supra note 347. Return to text.

[350] See SCHULTZE, supra note 347, at 27; FRIEDREICH VON HAYEK, CONSTITUTION AND LIBERTY (1960); Kenneth Arrow, Limited Knowledge and Economic Analysis, 64 AM. ECON. REV. 1 (1974). In land use regulation the information needed is varied and complex. The costs borne by developers, demand curves of homeowners, valuation of natural resources, and costs of alternatives for less damaging development are examples of complex land use information necessary to formulate good laws. Growth management laws have been criticized because the information required to formulate good laws takes too much time to gather and process. See Epstein, Property, supra note 116, at 110. Return to text.

[351] Cooter, supra note 334, at 285; SCHULTZE supra note 347, at 22. Schultze adds that market-like arrangements have the potential ability to direct innovation in socially desirable directions. Return to text.

[352] FLA. STAT. § 163.3202(4) (1995). Return to text.

[353] Such individualized decisionmaking is generally used in high impact developments because these techniques have high transaction costs. See generally, Wegner, supra note 281. Return to text.

[354] See generally Coase, supra note 128. Return to text.

[355] Id. There are many other ways to state the Coase theorem. See Cooter, supra note 334; Guido Calabresi, Transaction Costs, Resource Allocation and Liability Rules—A Comment, 11 J. LAW & ECON. 67 (1968); Coase Theorem Symposium: Part I, 13 NATURAL RESOURCES J. 557 (1973); BRUCE ACKERMAN, ECONOMIC FOUNDATIONS OF PROPERTY LAW 23-24, 30-31 (1975). Return to text.

[356] Markets are efficient in the sense described by Adam Smith's "invisible hand" theorem. See SMITH, supra note 346. Welfare efficiency is established when no consumer can be made better off by a transfer of goods or services. See COOTER & ULEN, supra note 203. Return to text.

[357] The economic concepts of "utility maximization" and "efficiency" are not concerned with the initial distribution of resources between parties (i.e. "equity"). See Posner, supra note 346. Return to text.

[358] Coase, supra note 128; Calabresi & Melamed, supra note 128. Return to text.

[359] Under a cooperative framework parties may not necessarily maximize their short-term individual outcomes, but instead maximize the group long-term outcome in order to maximize their own individual long term utility. Cooperative frameworks, for the most part, require that relationships be long-term and stable, that both parties have a stake in the success of the cooperative relationship, and that both parties be able to easily monitor mutual compliance. See generally ELLICKSON, supra note 334; Carol M. Rose, Women and Property: Gaining and Losing Ground, 78 VA. L. REV. 421 (1992). For purposes of this analysis, I assume noncooperative behavior because the conditions for a cooperative framework are difficult to achieve. Return to text.

[360] Proofs of the propositions set forth below would require statistical empirical analysis which this Article will not attempt to undertake. Return to text.

[361] See supra notes 219-22 and accompanying text. Return to text.

[362] FLA. STAT. § 70.001(9) (1995). Return to text.

[363] Since the state did not fund such expenditures, the land use entity will have to either reallocate funds initially dedicated to other tasks or seek additional funding. Both the 1975 Property Rights Report and the 1994 Property Rights Report recommended funding for reforms. See supra note 25. Return to text.

[364] FLA. STAT. § 70.001(6)(c) (1995). Return to text.

[365] Steven Shavell, Suit Settlement, and Trial: A Theoretical Analysis under Alternative Methods for the Allocation of Legal Costs, 11 J. LEGAL STUD. 55 (1982). Return to text.

[366] H.S.E. Gravelle, The Efficiency Implication of Cost-Shifting Rules, 13 INTL. REV. LAW AND ECON. 3, 12 (1993). Return to text.

[367] The Coase theorem emphasizes the importance of transaction costs in considering the effect of legal rules. See Coase, supra note 128; see also ACKERMAN, supra note 355, at 23-24; EPSTEIN, SIMPLE RULES, supra note 258. In this case, transaction costs are the costs associated with negotiating the settlement order. Return to text.

[368] Once a property owner has deciphered the appropriate procedure under the Property Rights Act, the administrative costs (time of preparation and consultant fees) should be very low for the average property owner. Attorney counseling, a high cost item, would be most appropriate in formulating an overall strategy; for example, whether to negotiate or mediate under the Property Rights Act, whether the property owner should seek compensation under the Property Rights Act, or whether she should file a 42 U.S.C. § 1983 (1994) civil rights claim in federal court. An attorney's advice would most likely benefit a sophisticated property owner with much at stake. Return to text.

[369] Opportunity costs are the costs of selecting one option rather than another. In this instance the property owner's opportunity cost is the time allocated to processing her claim which she could have used to pursue other alternatives. See COOTER & ULEN, supra note 203, at 35. Return to text.

[370] The Property Rights Act does not require that the appraiser be certified or selected by both parties. Accordingly, the property owner will have a wide range of appraisers from whom she can select. See FLA. STAT. § 70.001(4)(a) (1995). Return to text.

[371] Id. § 70.001(6)(c)(2). Return to text.

[372] See supra notes 279-80 and accompanying text. Return to text.

[373] Negotiation theory, a relatively new area of study, is premised on the insight that individuals with superior negotiation skills can achieve better outcomes. See ROGER FISHER & WILLIAM URY, GETTING TO YES (1981). Negotiations will yield more options to property owners than the current regulatory process, which tends to center on whether the property owner meets the mandatory requirements of an agency rule. See Ellickson, Alternatives to Zoning, supra note 129; see generally Susan Rose-Ackerman, Consensus versus Incentives: A Skeptical Look at Regulatory Negotiation, 43 DUKE L. J. 1206 (1994). Return to text.

[374] Ellickson, Alternatives to Zoning, supra note 129, at 691-94. Return to text.

[375] FLA. STAT. § 70.001(4)(b) (1995). Return to text.

[376] See supra notes 25, 266. Return to text.

[377] FLA. STAT. § 70.001(6)(a) (1995); see supra note 274 and accompanying text. Return to text.

[378] I am not arguing that the land use entity will always incur transaction costs higher than the property owner's costs. Rather, I am suggesting that the agencies will not be equipped to handle these additional claim transactions, so each claim will impose strains on the planning system which will be difficult for the agency to absorb. Return to text.

[379] Informational asymmetry as a variable in a settlement negotiation has been explored by others. See generally Cooter et al., supra note 337; I.P. L. P'ng, Strategic Behavior in Suit, Settlement, and Trial, 14 BELL J. ECON. 539 (1983); Bebchuck, supra note 337; Bruce L. Hay, Effort, Information, Settlement, Trial, 29 J. LEG. STUD. 29 (1995). Return to text.

[380] FLA. STAT. § 70.001(6)(b) (1995). Return to text.

[381] GEORGE LEFCOE, REAL ESTATE TRANSACTIONS 65-68 (1993). Return to text.

[382] Id. Return to text.

[383] Real estate reports tend to be highly variable and can be influenced by the parties. In commercial transactions such incentives are avoided by using certified appraisers mutually accepted by the parties. Return to text.

[384] FLA. STAT. § 70.001(4)(c)9 (1995). Return to text.

[385] See generally J. DALES, POLLUTION, PROPERTY AND PRICES (1968); Law and Economics Symposium: New Directions in Environmental Policy, 13 COLUM. J. ENVTL. L. 153 (1988). Return to text.

[386] Richard B. Stewart, Economics, Environment and the Limits of Legal Control, 9 HARV. ENVTL. L. REV 1 (1985); ROBERT MITCHELL & RICHARD CARSON, USING SURVEYS TO VALUE PUBLIC GOODS: THE CONTINGENT VALUATION METHOD (1989). Return to text.

[387] See FISHER & URY, supra note 373, at 81-94. Return to text.

[388] See Steven Shavell, Suit Settlement and Trial: A Theoretical Analysis under Alternative Methods for Allocation of Legal Costs, 11 J. LEG. STUD. 55 (1982); Cooter et al., supra note 337; Hay, supra note 337. Return to text.

[389] Id. Return to text.

[390] Richard Porter, Environmental Negotiation: Its Potential and Its Economic Efficiency, 15 J. ENV. ECON. & MGNT. 129 (1988) (court decisions are often made on obscure procedural grounds); Ronald Braeutigam et al., An Economic Analysis of Alternative Fee Shifting Systems, 47 LAW & CONTEMP. PROBS. 173 (1984) (court decisions are stochastic due to imperfect information and strategic behavior). Return to text.

[391] See supra notes 249, 321 and accompanying text. Return to text.

[392] See supra notes 149, 300-30 and accompanying text. Return to text.

[393] See Hay, supra note 379. Return to text.

[394] See supra notes 219-22 and accompanying text. Return to text.

[395] Opinion, gossip and reputation are short-hand methods for persons to evaluate alternatives. See generally, ROBIN M. HOGARTH & MELVIN W. REDER, RATIONAL CHOICE: THE CONTRAST BETWEEN ECONOMICS AND PSYCHOLOGY (1983). Return to text.

[396] See supra notes 364-66 and accompanying text. Return to text.

[397] See Cooter et al., supra note 337; Gravelle, supra note 366. Return to text.

[398] See generally Rose, supra note 359. Return to text.

[399] See supra notes 390-92 and accompanying text. Return to text.

[400] See Cooter et al, supra note 337. Return to text.

[401] See Rose, supra note 359. Return to text.

[402] See Shavell, supra note 365. Return to text.

[403] In addition to administrative costs accounted for in terms of dollars and cents, such as the cost of having to pay a compensation award to a successful claimant and increased person-hours in processing and attending claims filed under the Act, the Act creates intangible costs, such as increased risks to a risk-adverse entity, loss of reputation and goodwill, and greater skeptical scrutiny from legislators and courts. In the regulatory state, the predominant organizational culture of land use entities is to avoid public controversy, to prefer certainty to uncertainty, and to prefer proven methods to innovation and creativity. Return to text.

[404] In a recent rezoning controversy in Broward County, farmers close to the urban fringe wanted to rezone their land to commercial use. The Government officials agreed to upzone, citing their potential liability under the Property Rights Act as a justification for the decision. Telephone interview with Richard Grosso, Legal Director, 1000 Friends of Florida (July 10, 1995) (notes on file with author).

Recent newspaper articles as well confirm this prediction. The Wall Street Journal recently reported that in Palm Beach County, planning officials wanted to increase preservation area boundaries bordering the Everglades. They desisted in their plans because they feared lawsuits under the Property Rights Act. Peter Mitchell, New Property Rights Law Sends Planners Scrambling for Cover, WALL ST. J., Oct. 25, 1995, at F1, F3. The article also reports that in Manatee County, Charlotte County, and the City of Deland, the Act has had a chilling effect as well on conservation efforts. In another article Gainesville City Attorney Marion Radson characterized the Act as "hav[ing] a chilling effect . . . [i]t is going to be very difficult to try and be a responsible government when it comes to land use." Lucy Beebe, New Law to Chill Planning, Zoning, SARASOTA HERALD-TRIB., Oct. 8, 1995, at B1. Return to text.

[405] See supra note 128. But see Rose, supra note 126 (skeptical of the common belief that local processes are inherently corrupt). Return to text.

[406] See supra note 122 and accompanying text. Return to text.

[407] See supra notes 122-25 and accompanying text. Return to text.

[408] See supra note 122, 125 and accompanying text. Return to text.

[409] Only if the settlement agreement is in violation of a statutory provision, such as when the settlement order is inconsistent with the local comprehensive plan, does the settlement agreement need to be approved by a court. See supra notes 290-98 and accompanying text. Return to text.

[410] See supra notes 356-58. Return to text.

[411] See Stewart Macaulay, Non-Contractual Relations in Business: A Preliminary Study, 28 AM. SOC. REV. 55 (1963) (different persons in an organization will have different utilities and value structures and consequently fashion contracts with different conditions). Return to text.

[412] See FISHEL, supra note 258 (large cities tend to be more pro-development because of job creation concerns). But not all local governments may be competing for more growth. Commentators have observed that suburbs have a "parasitic" relationship with the metropolitan center in which they are located, and these may aim to control development more closely. See Bradley C. Karkkainen, Zoning: A Reply to the Critics, 10 J. LAND USE & ENVTL. L. 45, 58 n.50 (1994) (suburbs establish land use controls which enable them to pursue anti-growth and exclusionary policies beneficial to the suburb but detrimental to the larger metropolitan community). Return to text.

[413] It has been postulated that states attempt to structure their corporate laws to be as pro-management as possible in order to encourage businesses to incorporate in the state. The empirical evidence does not support this proposition. Scholars have explained that such results may be due to the fact that the securities market may demand a premium for investing in corporations in states with pro-management statutes, and that states therefore attempt to create a legal framework that balances the interests of management and shareholders. See Ralph K. Winter, Jr., State Law, Shareholder Protection and the Theory of the Corporation, 6 J. LEGAL STUD. 251 (1977); Roberta Romano, The State Competition Debate in Corporate Law, 8 CARDOZO L. REV. 709 (1987); Ellicot J. Weiss & Lawrence J. White, Of Econometrics and Indeterminacy: A Study of Investors' Reactions to `Changes' in Corporate Law, 75 CAL. L. REV. 551 (1987).

Florida has already had some experience in the "race to the bottom" with land use and environmental laws. The political forces that led to the enactment of the State Land Use Plan Act and the Local Growth Management Act grew from experience with a pro-development culture that threatened public goods which benefit all Floridians. See DeGrove, supra note 18; PELHAM, supra note 18; Powell, supra note 348. Return to text.

[414] But see Vicki Been, "Exit" as a Constraint on Land Use Exactions: Rethinking the Unconstitutional Conditions Doctrine, 91 COLUM. L. REV 473, 528-33 (arguing that competition among city governments may not be sufficiently competitive for a race to the bottom in development standards). Return to text.

[415] John Stuart Mill, Utilitarianism in THE UTILITARIANS 468 (1961) ("[S]ociety should treat all equally well who have deserved equally well of it."); BRUCE ACKERMAN, SOCIAL JUSTICE IN THE LIBERAL STATE 3-31 (1980). Return to text.

[416] Mitigation banking is a market-like mechanism where a development that has had an environmental impact offsets this impact by participating in a restoration project intended to restore the environment by either recreating, restoring or enhancing a natural ecological system. Mitigation banking offers potential efficiencies and economies of scale by concentrating resources in larger, environmentally-sensitive areas. Thus, mitigation banking is a system whereby a regulatory agency recognizes participation in a larger preservation effort as equivalent to compliance by another project with the agency's regulations. See generally ENVIRONMENTAL L. INST., WETLAND MITIGATION BANKING (1993); Fumero, supra note 115. In 1993, Florida adopted mitigation banking legislation. See FLA. STAT. § 373.4135 (1995). In order to address issues of coordination and consistency among agencies, the legislation adopted standards for the development of mitigation banking projects. Id. Return to text.

[417] The Property Rights Act provides that when any governmental entity receives written notice of a claim, the land use entity shall notify the Department of Legal Affairs in writing of the claim. See FLA. STAT. § 70.001(4)(b) (1995). This is an informational function, not a coordination function. Return to text.

[418] In the Mithica scenario, for example, if Growth had known the parcel might be downzoned, it would have paid less for the parcel because of this risk. Alternatively, Growth could have negotiated a form of contingent ownership, such as an option, that would have decreased its exposure to risk. Return to text.

[419] See COOTER & ULEN, supra note 203, at 198-201. Return to text.

[420] Id. Return to text.

[421] See Elizabeth Hoffman & Matthew L. Spitzer, The Coase Theorem: Some Experimental Tests, 25 J. LAW & ECON. 73 (1982); Elizabeth Hoffman and Matthew Spitzer, Experimental Tests of the Coase Theorem with Large Bargaining Groups, 15 J. LEGAL STUD. 149 (1986). Return to text.

[422] See supra notes 388-404 and accompanying text. Return to text.

[423] See 1994 PROPERTY RIGHTS REPORT, supra note 28, at 74-75; 1975 PROPERTY RIGHTS REPORT, supra note 3, at 12. Return to text.

[424] An alternative that would make the Act less onerous to administer would be to include a procedure enabling the land use entity or a neutral third party to dismiss unmeritorious claims expeditiously. Return to text.

[425] As previously noted, the House Report concluded that the Act does not violate Florida's Constitution unfunded mandate provision. See supra note 25. Nonetheless, the Act may be subject to attack. The Legislature's finding that the Act addresses an overriding state interest could be characterized as clever legislative drafting. See Lucas v. South Carolina Coastal Council, 122 S. Ct. 2886, 2898 n.12 (skeptical of legislative fact-finding because any scrutiny "amounts to a test of whether the legislature had a stupid staff"). Return to text.

[426] See supra notes 343-45 and accompanying text. Return to text.

[427] See supra notes 348-50x. Return to text.

[428] Surveys have shown that the majority of Floridians approve of Florida's environmental and growth management laws. See MARK D. DUDA & KIRA C. YOUNG, FLORIDIANS' WILDLIFE-RELATED ACTIVITIES, OPINIONS, KNOWLEDGE AND ATTITUDES TOWARD WILDLIFE: 1995 UPDATE (1995) (survey commissioned by the Florida Game and Fresh Water Fish Commission finding that 98% of Floridians believe protecting wildlife habitat is important and 97% of Floridians believe enforcing laws to protect wildlife is important). Return to text.


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